IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7422 OF 2015 BETWEEN:
1. SRI H D GANGANNA S/O LATE DEVAIAH, AGED ABOUT 60 YEARS, 2. SRI H D SHIVAPRAKASH S/O LATE DEVAIAH, AGED ABOUT 52 YEARS, 3. SRI G SANDEEP S/O H.D.GANGANNA, AGED ABOUT 29 YEARS, 4. SRI G PRADEEP S/O H.D.GANGANNA, AGED ABOUT 26 YEARS, ALL ARE RESIDING AT NO. 93, 4TH CROSS, BASAVESHWARA BADAVANE, BEML 3RD STAGE, RAJARAJESHWARI NAGAR, BANGALORE - 560 098.
... PETITIONERS (BY SRI: M.K. KEMPE GOWDA, ADVOCATE) AND DR B K GOPAL S/O PROF. R.K.GOWDER, AGED ABOUT 45 YEARS, #K-1606, BRIGADE GATEWARY, DR RAJKUMAR ROAD, RAJAJINAGAR, BANGALORE - 560 010.
(BY MS. DALIYA SINGH, ADVOCATE, FOR SRI: K G KAMATH, ADVOCATE) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 25.7.2014 WHICH THE PROCEEDINGS INITIATED AGAINST THE PETRS. U/S 138 OF N.I.ACT IN PCR NO.316/2013 NOW IT IS REGISTERED AS C.C.NO.20076/2014 PENDING ON THE FILE OF XIII A.C.M.M., BANGALORE UNDER ANNEXURE-H TO THE PETITION.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the petitioners and learned counsel for the respondent. Perused the records.
2. The petitioners have sought to quash the proceedings in C.C.No.20076/2014 pending on the file of XIII Addl. CMM, Bengaluru for the offence punishable under section 138 of N.I. Act.
3. Learned counsel for the petitioners’ submits that going by the averments made in the complaint, the cheque in question was issued by petitioner No.1/accused No.1. The averments made in the complaint also indicate that respondent had transaction only with petitioner No.1/accused No.1 and not with petitioner Nos.2 to 4. Therefore, the prosecution of the petitioners for the alleged offence is legally untenable. Further, he submits that according to the complainant, the memo of dishonour was issued on 16.10.2012. Legal notice was issued on 16.11.2012 beyond 30 days prescribed under Section 138 of N.I.Act. Therefore, on this score also, the impugned proceedings are liable to be quashed.
4. Defending the impugned action, learned counsel appearing for the respondent submitted that the complaint contains elaborate averments to the effect that all the petitioners entered into transaction with the complainant and in repayment of the amount received from the complainant, accused No.1 issued the cheque in question and therefore, all the petitioners are liable for dishonour of the said cheque.
5. On going through the averments made in the complaint, it is seen that the material allegations attracting the offence under section 138 of N.I. Act are directed only against accused No.1. Though it is stated that the complainant approached accused Nos.2, 3 and 4 and he was promised a site in BEML Employees Cooperative Society Limited, yet, the fact that receipts for having received the money was acknowledged only by accused No.1/petitioner No.1; the cheque in question was also issued by petitioner No.1/accused No.1; the cheque was drawn on the account maintained by accused No.1; and the said cheque having been dishonoured for ‘insufficient funds’ in view of Section 138 N.I. Act, only petitioner No.1/accused No.1 is liable for prosecution of the said offence. Hence, the prosecution of petitioner Nos.2 to 4(accused Nos.2, 3 and 4) being opposed to the provision of Section 138 of N.I. Act, is liable to be quashed.
6. Learned counsel for the respondent submits that having regard to the nature of the transaction between accused No.1 and the complainant, an opportunity be reserved to the complainant to summon petitioner Nos.2, 3 and 4 as witnesses. In the circumstances of the case, such liberty requires to be reserved in favour of the complainant. Accordingly, said liberty is reserved.
7. The other contention urged by the petitioners that the legal notice was issued beyond the period of 30 days cannot be accepted for the reason that the complainant had let in evidence to show that even though dishonour memo is dated 16.10.2012, the same was received by the complainant subsequent to 16.10.2012 and the notice has been issued within 30 days from the date of communication of the dishonour memo. As such, there is no illegality whatsoever in the compliance of requirements under section 138 of N.I. Act.
For the above reasons, the petition is allowed-in-part. The proceedings initiated against petitioner Nos.2, 3 and 4(accused Nos.2, 3 and 4) for the offence punishable under section 138 of N.I. Act in C.C.No.20076/2014 pending on the file of XIII ACMM, Bengaluru is hereby quashed.
Proceedings shall continue only against petitioner No.1(accused No.1) in accordance with law.
Sd/- JUDGE *mn/-