IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3605 OF 2014 BETWEEN:
Hyder Ali Khan, S/o Mohideen Khan, Aged about 47 years, R/of No.27/2, 1st Floor, 9th Main old Gurappanapalya BTM 1st Stage, DRC Post, Bengaluru - 560 029. …Petitioner (By Sri. Javeed S, Advocate) AND:
Noor Ahmed, S/o Ismail Ahmed, Aged about 64 years, R/of No.24/4, 2nd Cross, 7th ‘A’ Main, Old Gurappanapalya, BTM 1st Stage, DRC Post, Bengaluru – 560 029. ...Respondent (By Sri. M.V. Nanjund Gowda, Advocate - absent) This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 24.03.2014 passed by the Addl. S.J and P.O, FTC-X, Bengaluru City in Crl. RP No.158/2013 and to restore the order dated 25.02.2013 passed by the Member MACT and XVII ACMM, Bengaluru in C.C No.16807/2006 and etc., This Criminal petition coming on for Hearing, this day, the Court made the following:
O R D E R The petitioner is aggrieved by the order passed by the learned Sessions Judge in Crl.R.P. No.158/2013 whereby, the learned Sessions Judge has allowed the criminal revision petition filed under Section 397 of Cr.P.C. and has set aside the order passed by the learned Magistrate in C.C.No.16807/2006.
2. The respondent herein initiated proceedings against the petitioner (hereinafter referred to as “the accused” for short) for dishonour of cheque issued by the petitioner. During the cross-examination of respondent/complainant/PW.1, the petitioner/accused moved an application under Section 66 of the Indian Evidence Act, 1872 seeking for a direction to the respondent/complainant to produce the Joint Power of Attorney executed by one Sri. Safeer Khan in favour of the complainant and the accused. The said General Power of Attorney is said to have been executed by the accused in favour of the complainant. The learned Magistrate has allowed the application and directed the complainant to produce the said document. However, Revisional Court has reversed the order passed by the learned Magistrate.
3. Learned counsel for the petitioner submits that the existence of the aforesaid document is not in dispute. The complainant has admitted in his cross-examination that he is in possession of the aforesaid Power of Attorney and therefore, the learned Sessions Judge was not justified in interfering with the order passed by the learned Magistrate.
4. Undeniably, the dispute between the parties pertains to dishonour of cheque, which is said to have been issued by the petitioner/accused. The proceedings are initiated under Section 138 of Negotiable Instrument Act, 1881. It is essential to note that the primary burden is on the complainant to prove that the cheque in question was issued by the petitioner/accused for discharge of the debt or liability due to him. According to the petitioner/accused, the Power of Attorney is said to have been executed in respect of certain transaction relating to the real estate business carried on by the petitioner. In the said circumstances, the document sought for by the petitioner has absolutely no bearing or relevance to the dispute seized by the Court. As the primary burden is on the complainant, if for any reason, the complainant is not able to establish the subsisting debt in respect of which cheque was issued, the complainant would fail. The petitioner/accused has not set up defence based on the power of attorney or based on the alleged real estate transaction. Therefore, in my view, the documents sought for by the parties are irrelevant for decision in the case. Therefore, I do not find any reason to interfere with the impugned order passed by the learned Sessions Judge. Consequently, the petition is dismissed.
Sd/- JUDGE MBM