IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO. 3053 OF 2018 BETWEEN:
SRI. CHANNARAJE URS AGE: 75 YEARS (SENIOR CITIZEN) S/O LATE M C RAJE URS R/AT MANTESWAMY MATADA STREET, AGASAGERE, MALAVALLI TOWN MANDYA DISTRICT - 571430 SENIOR CITIZENSHIP CLAIMED. (BY SRI. NAGARAJU, ADVOCATE) AND:
SRI. M N NAGARAJU AGE: 64 YEARS, S/O LATE NANJAPPA M K R/AT KOTE KALAMMA TEMPLE STREET, MALAVALLI TOWN MANDYA DISTRICT - 571430 …PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO QUASH THE IMPUGNED COGNIZANCE DATED 02.11.2016 FOR THE OFFENCE P/U/S 138 OF N.I. ACT AGAINST THE ACCUSED TAKEN BY THE I ADDITIONAL JUDGE AND J.M.F.C., MADDUR, MANDYA DISTRICT PRODUCED AT ANNEXURE-A AND QUASH AND SET ASIDE THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAISNT THE PETITOENR /ACCUSED IN C.CNO.1713/2016 PENDING ON THE FILE OF I ADDITIONAL JUDGE AND J.M.F.C., MADDUR, MANDYA DISTRICT.
THIS CRIMINAL PETITION IS COMING ON FOR ‘ADMISSION’, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner who is accused in C.C.No.1713/2016, which proceedings have been initiated by respondent by filing a complaint u/s.200 Cr.P.C. alleging thereunder that petitioner has committed an offence punishable u/s.138 of the Negotiable Instrument Act. Hence, for quashing of proceedings, the petitioner-accused is before this Court.
2. Mr.Nagaraju, learned counsel appearing for petitioner would contend that cheque which is the subject matter of the proceedings before the trial Court is a stale cheque and account is also closed and as such cheque in question has been returned for want of sufficient funds. The words “Refer to drawer” and also “no proper account No. maintain in cheque” is indicated in the cheque return memo by petitioner’s bankers and as such provisions u/s.138 of N.I. Act is not attracted.
3. In order to invoke the extraordinary jurisdiction to quash the proceedings arising under NI Act, Court would presume that cheque had been issued for a discharge of debt or a liability. Presumption arising u/s.139 is a rebuttable presumption. However, existence of a legally enforceable debt or not is not a matter of presumption u/s.139 of the Act. Grounds urged by the petitioner in the present petition is a matter of evidence, which trial Court has to consider after taking on record such evidence. At this juncture, probable defence which the petitioner-accused may put up during the course of trial cannot be examined.
4. In that view of the matter, this Court is of the considered view that it is not a fit case for exercising extra ordinary jurisdiction to quash the proceedings. Hence, this Court finds that there is no merit in this petition and same is liable to be rejected and accordingly it stands rejected.
5. However, it is made clear that petitioner is said to be aged about 75 years and suffering not only with age related ailments but also from serious ailments and as such he is unable to be physically present before the Court on all the dates of hearing. Further, records on hand old disclose that trial Court is at the stage of recording the plea of the accused and for this purpose the accused has to appear before the trial Court and for such appearance and for subsequent appearances, if any application is made seeking exemption, trial Court shall sympathetically consider the same by evaluating the medical records that may be produced along with the application.
Subject to above, petition stands dismissed.
Sd/- JUDGE Snb/