IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1285/2018 C/W.
CRIMINAL REVISION PETITION NO.1286/2018, CRIMINAL REVISION PETITION NO.1327/2018, CRIMINAL REVISION PETITION NO.1451/2018, CRIMINAL REVISION PETITION NO.1452/2018, CRIMINAL REVISION PETITION NO.1453/2018, CRIMINAL REVISION PETITION NO.1454/2018, CRIMINAL REVISION PETITION NO.1455/2018, CRIMINAL REVISION PETITION NO.1456/2018.
IN CRL.RP.NO.1285 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Mr.Bheemanna, S/o. S.Hanumegoudru, Aged about 54 years, Occupation Civil Engineer, Residing at No.571, 5th Cross, 3rd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri Rahul Rai K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code praying to set aside the rejection order dated: 25-10-2018 in C.C.No.19432/2017 passed by the learned 12th Addl.Chief Metropolitan Magistrate at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL.RP. NO. 1286 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Mr.Bheemanna, S/o. S.Hanumegoudru, Aged about 54 years, Occupation Civil Engineer, Residing at No.571, 5th Cross, 3rd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code praying to set aside the rejection order dated: 25-10-2018 in C.C.No.19433/2017 passed by the learned 12th Addl. Chief Metropolitan Magistrate at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL.RP. NO.1327 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya,6th Cross, II Block, HMT Layout,Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Smt.Rohini, W/o. Satish Babu, Aged about 45 years, Residing at C/o Sri.A.H.Bheemanna, No.571, 3rd Block, 5th Cross, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code praying to set aside the rejection order in C.C.No.26468/2016 dated: 31-10-2018 passed by the learned 12th Addl.Chief Metropolitan Magistrate at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL RP NO.1451 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya,6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Mr.Bheemanna, S/o. S.Hanumegoudru, Aged about 54 years, Occupation Civil Engineer, Residing at No.571, 5th Cross, 3rd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073.
...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code praying to set aside the rejection order dated 16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL.RP NO.1452 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073.
(By Sri Vijay Kumar.K, Advocate) AND:
Sri.D.H.Shivamurthy, S/o.D.Halappa, Aged about 51 years, Occupation Agriculture, Residing at No.53, Spandan Nilaya, 4th Cross, Saptagiri Layout, Nagasandra Post, Bengaluru-560 073.
(By Sri. Rahul Rai.K, Advocate) … Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Criminal Procedure Code praying to set aside the rejection order dated:16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL. RP. NO.1453 OF 2018 BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Mr.Bheemanna, S/o. S.Hanumegoudru, Aged about 54 years, Occupation Civil Engineer, Residing at No.571, 5th Cross, 3rd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Criminal Procedure Code praying to set aside the rejection order dated: 16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL RP.NO.1454 OF 2018:
BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Smt.T.C.Sharada, W/o Ramaswamy.G.P, Aged about 56 years, R/at Ranganatha Nilaya, No.341, 6th Cross, 2nd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Criminal Procedure Code praying to set aside the rejection order dated: 16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL RP.NO.1455 OF 2018 BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Sri.Pandit, S/o Late. Shivappa, Aged about 60 years, Occupation (Retd) HMT Official, Residing at No.320, 6th Cross, 2nd Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Criminal Procedure Code praying to set aside the rejection order in C.C.No.21661/2016 dated:16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
IN CRL RP.NO.1456 OF 2018 BETWEEN:
Smt.R.Kalai Selvi, W/o Tangamani, Aged about 52 years, Residing at No.315, Vignesh Nilaya, 6th Cross, II Block, HMT Layout, Nagasandra Post, Bengaluru-560 073. … Petitioner (By Sri Vijay Kumar.K, Advocate) AND:
Smt.Anusuya, W/o Babu, Aged about 45 years, Residing at No.425, KRSG Extension, HMT Layout, Nagasandra Post, Bengaluru-560 073. ...Respondent (By Sri. Rahul Rai.K, Advocate) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Criminal Procedure Code praying to set aside the rejection order dated:16-10-2018 passed by the learned Small Causes Judge (SCCH-9) and XXVI ACMM at Bengaluru on application filed under Section 239 of Criminal Procedure Code and etc.
These Criminal Revision Petitions coming on for Admission this day, the Court made the following:
O R D E R Crl.R.P.No.1285/2018, 1286/2018, 1327/2018, 1451/2018, 1452/2018, 1453/2018, 1454/2018, 1455/2018 and 1456/2018 have been filed by the petitioner accused being aggrieved by the order passed by XII Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.Nos.19432/2017 and 19433/2017 dated 25.10.2016 and in CC No.26468/2016 dated 31.10.2018 and by XXVI Addl. Chief Metropolitan Magistrate, Bengaluru in CC Nos.26482/2016, 24889/2016, 25603/2016, 21661/2016, 21660/2016, 25606/2016 dated 16.10.2018 dismissing the application filed under Section 239 of Cr.PC.
2. Since, all these matters are arising out of common facts and common question of law involved, instead of repeating and disposing of them separately, common order has been passed.
3. Though these cases have been posted for admission, with the consent of learned counsel appearing for the parties, same are taken up together for final disposal.
4. I have heard learned counsel for the petitioner and respondent.
5. It is the submission of learned counsel for the accused petitioner that the petition filed under Section 135 of Cr.PC, is a defective complaint and the ingredients as contemplated under Section 138 of Negotiable Instrument Act (herein after referred as ‘the Act’ for short) has not been complied with. The said cheques have been issued not in respect of any enforceable debt and the said cheques have not been presented for encashment within the stipulated time as contemplated under law and whether it is honoured or dishonoured, no endorsement has been made by the Bank and thereafter within the stipulated time, no notice for demand of cheque amount has been made and even notice has not been served and without considering all these aspects, the trial Court has proceeded though the said petitions are not maintainable. He further submitted that without considering such facts, the trial Court has erroneously dismissed the petition filed under Section 239 of Cr.PC to discharge the accused petitioner. He further submitted that there is no recoverable debt and even the capacity has also not been stated in this particular regard.
6. He further submitted that it is an admitted fact that the accused petitioner is also a member of Chit transaction and the said cheques which have been issued in the chit transaction have been presented through different complainants only with an intention to harass and recover the amount from the accused petitioner. He further submitted that the said complainants are doing financial business without there being any statutory licence. In order to overcome, they have taken shelter under Section 138 of Cr.PC and as such, the petition is not maintainable and the Court below ought to have discharged the accused petitioner. He further submitted that no opportunity has been given to the accused petitioner to cross-examine the complainant and in the absence, the case has been posted for recording of statement of accused. He further submitted that in order to substantiate his contention, it is just and necessary to cross-examine the witness. On these grounds, he prays to allow the petition and to set aside the impugned order.
7. Per contra Sri Rahul Rai K., learned counsel appearing on behalf of the respondent vehemently argued and submitted that the order of the trial Court is very clear that already after appearance of accused, the plea of the accused came to be recorded and thereafter, the complainant was got examined and also cross- examined and thereafter, the case has been posed for recording the statement of accused under Section 313 of Cr.PC. At that point of time, an application has been filed under Section 239 of Cr.PC to discharge the accused. He further submitted that as per Chapter XX of the Code of Criminal Procedure, the application for discharge under Section 239 is not maintainable. The Court below after considering the said aspect, has rightly dismissed the petition. In order to substantiate the said contention, he relied upon the decision in the case of Subramanium Sethuraman V/s State of Maharastra and Another reported in (2004) 13 SCC 324. On these grounds, he prays to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by leatned counsel appearing for the parties and perused the record.
9. Several contentions have been raised by learned counsel for the petitioner by contending that the complaint itself is a defective complaint and it is not going to satisfy any of the ingredients as contemplated under Section 138 of the Act. But as could be seen from the records, already after appearance of the accused petitioner, plea of the accused was recorded thereafter, the complainant came to be examined as PW-1 and has been cross-examined and thereafter, case has been posted for recording of statement of accused under Section 313 of Cr.PC and at that stage, the present application was came to be filed under Section 239 of Cr.PC to discharge from the case.
10. It is well settled principles of law laid down by the Hon’ble Apex Court that the case involving a summons case is covered under Chapter XX of the Cr.PC which does not contemplate a stage of discharge like 239 which provides for a discharge in a warrant case. In the instant case on hand, already the plea has been recorded and thereafter, the complainant has been cross-examined and statement of accused was also came to be recorded. In the decision of the Hon’ble Apex Court in the case of Subramanium Sethuraman quoted supra at para 16 which reads as under;
“16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge, cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion that once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.”
On close reading of para 16 it indicates that the application which has been filed under Section 239 of Cr.PC for discharge after recording the plea and evidence of PW1 and 313 statement is not maintainable in law and as such the trial Court after considering the said facts and circumstances, has come to right conclusion. Several conditions have been raised regarding the maintainability of the complaints, same can be urged when the case is going to be heard and decided finally.
11. It is the submission of learned counsel for the petitioner accused that an opportunity may be given to the accused petitioner to cross-examine the complainant, in that light, liberty is to be given to the petitioner accused and even learned counsel for the respondent submit that he has no objection if an appropriate application is filed to recall the PW-1- complainant to cross-examine and he will be made available in this behalf.
The trial Court is directed if any such application is filed, same may be allowed and the accused petitioner may be permitted to recall the witness and who have been already examined, permit the petitioner- accused to cross-examine them in full thereafter, after following the procedure, it can be disposed of in accordance with law. During the course of arguments, it is noticed that very small point has been involved in between the parties and morethan 12 cases are pending between the parties.
Under the said facts and circumstances, the trial Court is directed to expeditiously dispose of the cases within a period of four months after receipt of this order without further extension of time. With the consent of learned counsel for the respondent, the cost imposed by the trial Court is waived of.
With the aforesaid observations, above said petitions are disposed of.
Keep copy of this order in each petition.
Sd/- JUDGE PN/-