IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.5782/2018 BETWEEN:
S.D.BHANUPRAKASH, AGED ABOUT 46 YEARS, S/O LATE MR.S.R.DARUKARADHYA, R/AT SHIVABHA, SHIVAGANGA NAGAR, BESIDE CHETHANA SCHOOL, BATAVADI, TUMKUR – 572 103.
(BY SRI.M.T.NANAIAH, SENIOR COUNSEL A/W SMT.RACHITHA NANAIAH, ADV.) AND:
THE MANAGER, VEERASHIVA CO-OPERATIVE BANK LTD., TUMKUR HEAD OFFICE, DR.RADHAKRISHNA ROAD, S.S.PURAM, TUMKUR – 572 101.
…PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.6462/2014 (OLD C.C.NO.1470/2009) FOR THE OFFENCE P/U/S 138 OF N.I. ACT PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., TUMAKURU AND DISMISS THE COMPLAINT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Respondent-Bank has filed a complaint under Section 200 of Cr.P.C. alleging petitioner had issued a cheque for Rs.3 lakhs towards repayment of the loan borrowed by Accused No.2, namely, wife of petitioner and said cheque when presented for encashment has been returned with an endorsement “payment stopped by the drawer”. It is further alleged that notice was issued to the accused by a ‘Registered Post Acknowledgment Due’ and ‘Certificate of Posting’ on 19.01.2006, which has been duly served and accused has neither replied nor paid the amount demanded under the notice.
2. Above said complaint has been filed on 03.03.2006 and even after lapse of 12 years, the proceedings seems to have not come to an end. Be that as it may, Accused No.1 in the above said proceedings is before this Court for quashing of the said proceedings and arguments advanced by learned Senior Counsel Sri.M.T.Nanaiah appearing for petitioner to the effect that there is no specific averment in the complaint with regard to cheque having been issued by the petitioner- accused towards any debt i.e., “legally enforceable debt” and therefore, proceedings cannot be continued against petitioner and averments or allegations made in the complaint with regard to issuance of the notice are also vague. If proceedings are continued, it would amount to abuse of process of law. Even if the allegations made in the complaint are not rebutted, then also the accused- petitioner cannot be convicted for the alleged offence and as such, he prays for quashing of the proceedings.
3. While considering the plea for quashing of proceedings by exercise of extraordinary or inherent jurisdiction vested in this Court under Section 482 of Cr.P.C., the probable defence of accused would not be examined. A plain reading of the complaint as well as material available before the Court, if prima-facie does not disclose any offence having been made out by the petitioner-accused, this Court would definitely hold that continuation of such proceedings would be onerous to the accused as he would have face trial. In such circumstances, this Court would exercise the jurisdiction. The ultimate object which is sought to be achieved is to exercise jurisdiction to secure the ends of justice.
4. In the instant case, complainant-Bank in the complaint filed before the jurisdictional Magistrate has clearly and emphatically contended that wife of petitioner who is Accused No.2 has borrowed loan for purchase of vehicle and towards repayment of said installments payable by Accused No.2, Accused No.1 being husband of Accused No.2 has issued the cheque bearing No.586163 drawn on T.G.M.C.Bank Ltd. As such, it cannot be held that there is no averment/allegation with regard to cheque in question having not been issued towards discharge of the debt. As such, first contention cannot be accepted and it stands rejected.
5. Insofar as second contention is concerned, at paragraph-5 of the complaint, it has been contended that notice contemplated under Section 138 of Negotiable Instrument Act has been issued by RPAD and Certificate of Posting on 19.01.2006. Thus, the burden is on the complainant to establish this fact and it is a matter of trial. As such, this Court is of the considered view that it is not a fit case to exercise extraordinary jurisdiction to quash the proceedings on the basis of accusation made by accused.
6. Hence, no good ground are made out by the petitioner to interfere. Accordingly, criminal petition is rejected.
In view of dismissal of criminal petition, I.A.1/18 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE Srl.