IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R.DEVDAS CRIMINAL PETITION NO.8144 OF 2016 BETWEEN SRI GOWADARA BASAVARAJAPPA S/O. GOWDRA NAGENDRA AGED ABOUT 48 YEARS RESIDING AT H.NO.1012/1212 5TH MAIN, 12TH CROSS H.S. EXTENSION HARIHAR – 577 601 ...PETITIONER (BY SRI VISHWAJITH SHETTY S, ADVOCATE) AND KOTEYAL ANJANEYA S/O. K.HANUMANTHAPPA AGED ABOUT 44 YEARS R/O. KUMBALUR VILLAGE HARIHARA TALUK – 577 601 …RESPONDENT (RESPONDENT SERVED BUT UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1089/2012 (PCR NO.76/2012) PENDING ON THE FILE OF PRL.CIVIL JUDGE AND JMFC., HARIHARA AS AGAINST THE PETITIONER HEREIN REGISTERED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
This criminal petition is filed under Section 482 of the Code of Criminal Procedure seeking quashment of the entire proceedings in C.C.No.1089/2012 which was registered in PCR.No.76/2012 on the file of the Principal Civil Judge, JMFC, Harihara for the offence punishable under Section 138 of the Negotiable Instruments Act. Though the notice is served on the respondent, the respondent has remained absent.
2. Learned counsel for the petitioner submits that on bare perusal of cheque dated 12.07.2012, makes it is clear that the same was issued by the petitioner in his capacity as the Secretary of Kisan Bhandar, Kissan Rakshak Krushi Rural Development Sangha (Registered), having its Centre office at Malebennur, Harihara Taluk, Davanagere District. The learned counsel further submits that the true facts are that the respondent had purchased paddy seeds from the Sangha but after a few days the respondent complained that the seeds were of bad quality. In that regard, the Sangha decided to reimburse the respondent if it was found that the seeds were of bad quality. In that regard, a decision was taken by the Sangha and the seeds were sent for quality test. In the meanwhile, the cheque was issued by the Sangha in order to assure the respondent that if it was found that the seeds quality were bad then he could encash the same towards the cost of the paddy seeds. Thereafter, when the seeds were sent for quality test, it was found that the seeds were of good quality. However, the respondent, by misusing the cheque, presented the same through his bankers and it is said that the cheque returned with shara ‘insufficient funds’. It is further submitted by the learned counsel for the petitioner that the true facts are that notice was not served on the petitioner. If notice was served then the petitioner would have replied in the terms above mentioned.
3. Moreover, the learned counsel for the petitioner while placing reliance on the decision of Hon’ble Supreme Court of India in the case of Aneeta Hada V. Godfather Travels & Tours (P) Ltd. reported in 2012(5) SCC 661, submitted that whenever a cheque drawn by a Company is dishonoured, it is mandatory requirement of law of impleading the Company as one of the accused. The prosecution against a Director or authorized signatory of cheque without arraigning the company as accused was held to be not maintainable.
4. Heard the learned counsel for the petitioner and perused the petition papers.
5. On perusal of the cheque dated 12.07.2012 which forms the basis of the private complaint registered by the respondent, this court finds that the cheque has been signed by the Secretary for Kissan Bhandar. The decision in Aneeta Hada’s case will apply in a case where the cheque is drawn by a company or any other legal entity. But here, it is the case of the respondent that the cheque was drawn on the individual private capacity of the petitioner. Therefore, the question of arraigning the Sangha as a party will not arise. Therefore, to that extent, the decision in Aneeta Hada’s case is not applicable to the facts of the present case.
6. On the other hand, on bare perusal of the cheque, it is clear that the cheque was issued by the Secretary of Kissan Bhandar, it is said to be a registered Society as mentioned above. On close reading of the private complaint which was lodged by the respondent, it is clear that the respondent has named the petitioner and the residential address of the petitioner is reflected in the cause title. However, below that the name of the petitioner is once again repeated. But, the office address is given as Secretary of Kisan Bandar, Kissan Rakshak Krushi Rural Development Sangha (Registered), Centre office at Malebennur, Harihara Taluk , Davanagere District. If the allegation of the respondent is to be accepted then there was no occasion for the petitioner to sign the cheque as the Secretary of Kisan Bandhar and when once the cheque of the Sangha is issued, then respondent could not have claimed that the cheque has issued in the individual capacity of the petitioner. To that extent, the submission of the learned counsel for the petitioner requires to be accepted. It was incumbent upon the Magistrate to look at the cheque and when it is found that the cheque has been issued by a Secretary of Kisan Bandhar, the Magistrate should have further enquired into the matter before issuing summons to the petitioner herein .
7. In the light of the above, this Court is of the considered opinion that the summons issued by the Magistrate without satisfying himself of the requirement of law will have to be set aside. The matter is required to be reconsidered by the Magistrate from the stage of taking cognizance. The Magistrate shall take note of the observations made by this Court and deal with the matter afresh. Thereafter, if the Magistrate comes to a conclusion that summons is required to be issued, only then the magistrate may proceed. Accordingly, the petition is partly allowed. The summons issued by the Principal Civil Judge, JMFC, Harihara in C.C.No.1089/2012 is hereby quashed and set aside.
8. The Magistrate will have to re-commence the proceedings from the stage of taking cognizance. It is ordered accordingly.
Sd/- JUDGE KTY.