IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2750/2019 BETWEEN:
MIRA INTERNATIONAL EXPORTERS AND IMPORTERS REP. BY ITS PROPRIETOR, S. KESAVAN S/O SRI. RAMAN NEW NO.6, OLD NO.53 III MAIN ROAD, FLAT NO.3 1ST FLOOR, SRI. RAMAN ENCLAVE RAJA ANNAMALAIPURAM CHENNAI – 600 028.
(BY SRI. V. MOHAN., ADVOCATE) AND:
VARUSHA PRIYA AGROTECH PRIVATE LIMITED NO.195, 7TH CROSS, I STAGE INDIRANAGAR BANGALORE – 560 038 REP. BY ITS DIRECTORS THIRU R. NATARAJAN S/O V. RAMAMURTHY BENGALURU AT PRESENT R/AT NO.125 THANGARAJ NAGAR CUDDALORE – 607 002.
... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED:01.04.2019 (ANNEXURE-A) PASSED IN I.A. FILED U/S 311 OF CR.PC IN C.C.NO.9980/2018 (PREVIOUSLY 121/2004) PASSED BY THE LEARNED 27TH A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. V. Mohan, learned Advocate appearing for petitioner. Perused the records.
2. Petitioner who is facing prosecution for the alleged offence punishable under Section 138 of Negotiable Instruments (for short ‘NI Act’) Act, 1881 in C.C.No.9980/2018 is before this Court calling in question order dated 01.04.2019- Annexure-A, whereunder application filed by the complainant seeking recall of P.W.1 has been allowed to lead further evidence.
3. Respondent herein filed a complaint under Section 200 Cr.P.C alleging that petitioner-accused had committed an offence punishable under Section 138 of NI Act and said complaint came to be presented before Judicial First Class Magistrate, Cuddalore, Tamil Nadu which was registered in C.C.No.121/2004. In the light of law laid down by Hon’ble Apex Court in the case of DASHRATH RUPSINGH RATHOD VS. STATE OF MAHARASHTRA AND ANOTHER reported in 2014 (9) SCC 129, matter came to be transferred to the Court of Chief Metropolitan Magistrate, Bangalore. Fresh sworn statement of Managing Director of the complainant – company came to be recorded by examining him as P.W.1 and through him documents were got marked as Ex.P.1 to Ex.P8. Summons came to be issued to accused and pleading not guilty accused was enlarged on bail. Matter was listed for recording defence evidence since the accused on appearance did not seek to file an application under Section 145(2) of NI Act, seeking permission of the Magistrate to cross-examine P.W.1, at that stage application under Section 143A of NI Act came to be filed by the complainant seeking direction to the accused to pay interim compensation i.e., 20% of the cheque amount. On rejection of said application, accused moved application under Section 311 Cr.P.C. to cross-examine P.W.1 which came to be allowed and petitioner–P.W.1 was cross-examined. It is thereafter an application under Section 311 Cr.P.C. came to be filed by the complainant to produce board resolution, authorization letter and also sought for tendering further examination-in-chief for purposes of production of said documents and to mark them. This application came to be opposed by the accused-petitioner contending interalia that application is filed to fill up the lacuna on the ground that accused has not cross-examined P.W.1. Learned trial Judge has opined question of filing up lacuna does not arise and only in the event of accused having elicited certain admission from P.W.1 such an argument was available. Hence, application came to be allowed.
4. It is the contention of Sri. V. Mohan, learned Advocate appearing for petitioner that complaint itself suffers initial defect namely, complainant who presented the compliant was not an authorised officer and it said complaint itself is with defects and as such, question of permitting petitioner to lead further evidence would amount to filling the lacunas. In the instant case, name of P.W.1 came to be substituted by filing an application which has been allowed and said order having reached finality, contention raised in that regard cannot be examined now. In this background learned Magistrate has rightly opined that defect of authorization can be rectified and subsequently production of board resolution and authorization letter which was initially given to Sri. Nataraj (who had presented complaint) at the first instance which has been now produced and to prove same by recalling PW-1, would not cause prejudice to the accused. In the light of said finding arrived at by the learned trial judge, this Court is of the considered view that prayer sought for in the present petition cannot be granted particularly in the background of P.W.1 is yet to be cross-examined by the accused-petitioner.
No other good ground is made out to entertain this petition. Hence, petition stands rejected.
SD/- JUDGE RU