IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO. 479 OF 2018 BETWEEN:
GOPALA M., S/O LATE MUNIYAPPA, AGED ABOUT 50 YEARS, RESIDING AT APPASANDRA VILLAGE, JEDIGENAHALLI HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114.
(BY SRI B.M.HALA SWAMY, ADVOCATE) AND:
NARAYANASWAMY M., S/O LATE MUNIYAPPA, AGED ABOUT 49 YEARS, RESIDING AT APPASANDRA VILLAGE, JEDIGENAHALLI HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114.
(BY SRI RAVIPRAKASH T AVIN, ADVOCATE) ...PETITIONER ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE COMPLAINT AND THE COGNIZANCE OF THE OFFENCE IN PCR NO.213/2017 ORDER DATED 14.09.2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HOSKOTE, BENGALURU RURAL DISTRICT.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri B.M.Hala Swamy, learned counsel appearing for petitioner. Perused the case papers.
2. Petitioner has sought for quashing of the proceedings pending in PCR No.213/2017 on the file of Principal Civil Judge and JMFC, Hoskote, Bengaluru Rural District, whereunder cognizance of the offence alleged against petitioner under Section 138 of N.I. Act by the jurisdictional Court has been taken on 14.09.2017, which complaint has been filed by the respondent herein under Section 200 of Cr.P.C. r/w Section 138 of N.I. Act, contending inter alia for discharge of debt, cheque issued by the petitioner had been presented and it came to be dishonoured and demand made by issuance of notice is not complied. Hence, contending petitioner has to be prosecuted for the offences committed by him under Section 138 of N.I. Act, complaint in question came to be filed.
3. It is the contention of learned counsel appearing for petitioner that subject cheques had been lost by the petitioner and to evidence said fact he had lodged a complaint before Hosakote Police on 18.12.2014 whereunder it has been alleged that apart from cheques in question petitioner had lost other documents and said complaint having been registered in C.Misc.1866/2014 vide Annexure-D, continuation of proceedings against petitioner for an offence under section 138 of NI Act does not arise. It is also contended cheques in question are stale cheques which do not contain even IFSC code and learned Magistrate has committed a serious error in taking cognizance of the alleged offence under Section 138 of N.I. Act against petitioner, which proceedings are liable to be quashed.
4. Having heard the learned counsel appearing for petitioner and on perusal of records, it would disclose that on the basis of complaint lodged by respondent alleging that petitioner herein had issued subject cheques towards discharge of debt, a complaint came to be filed. As to whether there was existence of legally recoverable debt is an issue, which will have to be gone into by the learned trial judge after considering the evidence that may be tendered by the parties. The probable defence accused may tender during trial would not be in the domain of consideration by this Court, that too, for exercise of inherent jurisdiction under Section 482 of Cr.P.C. That apart, there is no material on record to establish that complaint given by the petitioner has reached its logical end. Hence, petitioner cannot contend in the proceedings pending before trial Court that cognizance should not have been taken by learned trial Judge or proceedings is liable to be quashed. As such, keeping open all contentions including the probable defence of the petitioner raised in this petition to be urged before trial Judge, this petition stands dismissed.
In view of dismissal of main petition, I.A.No.1/18 for stay does not survive for consideration and same is rejected.
Sd/- JUDGE TL