IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.8048 OF 2017 BETWEEN:
1. SMT.R.RAJESWARI W/O.R.SATHYANARAYANA RAJU AGED ABOUT 48 YEARS R/AT NO.906 “SREE NILAYAM”, ‘D’ BLOCK 10TH MAIN ROAD, 16TH CROSS SAHAKARA NAGAR BANGALORE-560 092 2. M/S.RUDRAVARMA DEVELOPERS REPRESENTED BY ITS PARTNER SMT.R.RAJESWARI W/O.R.SATHYANARAYANA RAJU AGED ABOUT 48 YEARS R/AT NO.906 “SREE NILAYAM”, ‘D’ BLOCK 10TH MAIN ROAD, 16TH CROSS SAHAKARA NAGAR BANGALORE-560 092 … PETITIONERS (BY SRI KALYAN R., ADVOCATE) AND:
SRI PRAKASHA K.R. S/O.RAMACHANDRAPPA AGED ABOUT 38 YEARS NO.42/4, MUKUNDA ASHRITHA BEHIND AMITY SPCT APARTMENT DODDA BOMMASANDRA VIDHYARANYAPURAM POST BANGALORE-560 097 …RESPONDENT (RESPONDENT IS SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE COMPLAINT FILED BY THE RESPONDENT UNDER SECTION 200 OF CR.P.C. READ WITH SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 AND ALSO TO QUASH THE ORDER DATED 11.04.2017 IN PCR NO.4587/2017 TAKING COGNIZANCE OF THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 NOW REGISTERED AS CC.NO.10964/2017 PENDING ON THE FILE OF XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners. Perused the record. Respondent is served and unrepresented.
2. Respondent herein initiated action against petitioners and accused No.1 for dishonour of cheque for Rs.9,00,000/-.
3. The contention of learned counsel for petitioners is that the cheque in question was drawn by accused No.1-Sri Varma R.D.P. There are no averments in the entire complaint that the alleged loan was borrowed by the petitioners or that the cheque in question was issued by the petitioners herein towards discharge of debt of liability due by them. In the said circumstance, prosecution of the petitioners is contrary to Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) and is liable to be quashed.
4. On going through the averments made in the complaint, it can be gathered that the complainant had transaction with accused No.1-Varma R.D.P. Though in the complaint it is stated that accused Nos.1 and 2 were the partners of M/s.Rudravarma Developers, the averments made in the complaint go to show that the amount in question was paid to accused No.1 and the cheque in question was issued by accused No.1. The cheque is signed only by accused No.1. There are no averments whatsoever in the entire complaint that the cheque was issued by the petitioners herein towards discharge of debt of liability due by them. Under the said circumstance, the essential ingredients of Section 138 of the Act having not been satisfied, the prosecution of the petitioners is legally untenable. As a result, the petition deserves to be allowed.
Accordingly, the petition is allowed. The prosecution launched against petitioner/accused No.2 for the alleged offence under Section 138 of the Act stands quashed. The proceedings shall continue only against accused Nos.1 and 3 in accordance with law.
The contention urged by learned Counsel for petitioners that cognizance taken by the learned Magistrate is not in accordance with law, is rejected.
Sd/- JUDGE LB