IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2346/2018 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 – 560 010 R/AT NO. 40, 14TH-A-CROSS P & T COLONY, BENGALURLU – 560 043.
(BY SRI. H.J. ANANDA., ADVOCATE) AND:
M/S. ONE KUMARA PARK PROPERTIES PRIVATE LIMITED, REP. BY MANAGING DIRECTOR, MR. NARAYANA GUPTA S/O LATE RAMSWAROOPAL GUPTA AGED ABOUT 51 YEARS NO.1, 3RD FLOOR, RNG PALAZZO SOUTH END ROAD, KUMARA PARK EAST BENGLAURU – 560 001.
REPRESENTED BY SPA HOLDER SUNIL KUMAR JAIN S/O LATE HANSRAJ JAIN AGED ABOUT 45 YEARS MANAGER, M/S ONE KUMARA PARK PROPERTIES PRIVATE LIMITED NO.1, 3RD FLOOR, RNG PALAZZO ... PETITIONER SOUTH END ROAD, KUMARA PARK EAST, BENGLAURU – 560 001.
... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.9214/2016 ON THE FILE OF XXVII ADDL.C.M.M., BENGALURU VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.H.J. Ananda, learned counsel appearing for the petitioner. Perused the records.
2. Respondent herein has filed a complaint under Section 200 of Cr.P.C. r/w Sections 138, 141 & 142 of Negotiable Instruments Act, 1881 (for short ‘NI Act’), against petitioner-accused alleging that cheques issued by petitioner for discharge of debt, when presented, has been returned unpaid, with 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 accused had not complied with the demand 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. It is the contention of Sri.Ananda, learned counsel appearing for petitioner that cheques in question along with other cheques signed by petitioner-accused has been misused by Anand, Ramesh, Gopi and Raghavendra Shettru, as such, petitioner-accused had filed a complaint against these four persons which was registered in Crime No.82/2016 by Magadi Road Police Station, which after investigation has ended in filing of the charge sheet in C.C.No.9214/2016 for the offence punishable under Sections 420, 506 r/w 34 of IPC and it is at the stage of trial and said proceedings will have a direct bearing on cheques issued in question namely which are subject matter of complaint P.C.R.No.2054/2016, now pending in C.C.No.9214/2016 and as such, continuation of said proceedings against petitioner would be an abuse of process of law and petitioner is being made to undergo the ordeal of trial for no fault. Hence, he prays for quashing of said proceedings.
4. Having heard 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 (rebuttable) arises when cheque was issued by drawer to drawee in discharge of a debt or liability owed by him to its holder. 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, presumption that cheque had been issued for discharge of debt or liability would be in favour of drawee-complainant and such presumption can be rebutted by accused during the course of trial. In other words, all statutory presumptions are rebuttable. In fact, expression used in Section 138 of N.I. Act 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.
5. 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 such 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 inherent power under Section 482 of Cr.P.C and subsequently, proceedings initiated by petitioner-accused, which is now pending in C.C.No.9214/2016 were to end in acquittal, then present complainant would be left in lurch and petitioner-accused would have the benefit of an acquittal in the present proceedings by default. As such, this Court is of considered view that it would be apt and appropriate to reserve liberty to petitioner 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 while examining the case on merits.
Subject to these observations, this Petition stands rejected.
SD/- JUDGE DR