IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2347/2018 Between:
Sri.Jagadish Kumar D.V.
S/o Late Venkataramanappa, Aged about 42 years, Proprietor of Annapoorneshwari Industries, No.6/101/2, 4th Cross, 6th Block, Rajajinagar, Bengaluru – 560010 R/at No.40, 14th A Cross, P & T Colony, Cholarapalya, Bengaluru – 560043. ... Petitioner (By Sri.H.J.Ananda, Advocate) And:
Sunildas.N.Rohira S/o Late Narayandas. L Aged about 50 years, No.10/3, Shivkunj, 4th Cross, 4th Block, Kumarapark West, Bengaluru – 560020. ... 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 entire proceedings in C.C.No.14054/2016 on the file of XV Additional C.M.M., Bengaluru vide Annexure-A and etc.
This Criminal Petition coming for orders this day, the Court made the following:
O R D E R Heard Sri.H.J. Ananda learned counsel appearing for petitioner. Perused the records.
2. Respondent herein has filed a complaint under Section 200 of Code of Criminal Procedure read with Sections 138, 141 & 142 of Negotiable Instruments Act, 1881, against petitioner-accused alleging that cheques issued by petitioner for discharge of debt, when presented, has been returned unpaid, with an endorsement “Funds Insufficient”. It is also alleged that statutory notice issued demanding the amount covered under subject cheques has been duly served on accused and he had not complied with the demands and thereby, has committed an offence punishable under Section 138 of N.I. Act.
3. On such complaint being registered, summons has been issued and petitioner is before this Court for quashing of said proceedings.
4. It is the contention of Sri.Anand, learned counsel appearing for petitioner that cheques in question along with other cheques signed by petitioner-accused had been misused by Anand, Ramesh, Gopi and Raghavendra Shetty, as such, petitioner-accused has filed a complaint against said four persons which has been registered in Crime No.82/2016 by Magadi Road PS, and after completion of investigation charge sheet in C.C.No.22022/2017 has been filed against them for the offences punishable under Sections 420, 506 r/w 34 of IPC and it is at the stage of trial. It is contended that said proceedings has a direct bearing on cheques issued in question, which are subject matter of the present private complaint namely P.C.R.No.1799/2016, now pending in C.C.No.14054/2016 and as such, the continuation of proceedings against the petitioner would be an abuse of process of law and if petitioner is made to face the ordeal of trial and disclose his defence which is the subject matter of allegation made by him against respondent herein which has already resulted in filing of the charge sheet in C.C.No.22022/2017 against four persons, it would prejudice his rights and hence, he prays for quashing of said proceedings.
5. Having heard the learned counsel appearing for petitioner and on perusal of records, it would disclose that signature found on cheques in question is not in serious dispute. Under Section 139 of N.I. Act, a presumption (rebuttal) arises when cheque has been issued by drawer to drawee was towards discharge of debt or liability. In other words, Section 139 of N.I. Act raises a presumption that cheque has been issued for discharge of a debt or liability but existence of legally recoverable debt is not a matter of presumption under Section 139 of N.I. Act. To put it differently, the presumption that cheque had been issued for discharge of debt or liability would be in favour of drawee-complainant and even such presumption can be rebutted by accused during course of trial. In other words, all statutory presumptions are rebuttable. In fact, expression used in Section 138 i.e., “shall be presumed, unless the contrary is proved” itself indicates that presumption arising with regard to cheque having been issued for discharge of debt or liability is a rebuttable presumption. In that view of the matter, contention of petitioner about cheques in question having been misused by four persons and filing of charge sheet against them, are all matter of defence which would be available to the petitioner-accused to rebut presumption arising under Section 139 of N.I. Act, in favour of complainant-drawee. If proceedings initiated by complainant against petitioner-accused for offence punishable under Section 138 of N.I. Act is stifled by this Court in exercise of power under Section 482 of Cr.P.C and subsequently, proceedings initiated by petitioner-accused which is now pending in C.C.No.22022/2017 were to end in an acquittal, then present complainant would be left in lurch and the petitioner-accused would have benefit of an acquittal by default, though he might have committed the offence punishable under Section 138 of N.I. Act. As such, this Court is of considered view that it would be apt and appropriate to reserve liberty to the petitioner herein to raise all such rebuttable evidence which he intends to tender in pending proceedings and if so tendered, jurisdictional Magistrate would definitely examine the same by taking note of it and pass appropriate orders. Subject to these observations, this Petition stands rejected.
In view of this criminal petition having been disposed of on main, I.A.No.1/2018 for stay does not survive for consideration and it is hereby rejected.
SD/- JUDGE NBM