IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2344 OF 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:
OM SAI ASSOCIATES, REPRESENTED BY PARTNER DILIP KUMAR, AGED ABOUT 59 YEARS, S/O LATE ARJUN LAL, NO.21, 3RD FLOOR, OTC ROAD CROSS, S.P ROAD, BENGALURU-560002.
REPRESENTED BY SPA HOLDER, PRAKASH KANDHARI, S/O SRI. LAXMANDAS TARACHAND, AGED ABOUT 59 YEARS, R/AT FLAT NO.3, NO.218/19, 3RD BLOCK, 4TH STAGE, 7TH MAIN, BASAVESHWARANAGARA, BENGALURU-560079. ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.4814/2017 ON THE FILE OF THE 42nd A.C.M.M., BANGALORE VIDE AT ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 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 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 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 demand thereunder 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 contention of Sri.Anand, 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 Shetty, as such, petitioner-accused had filed a complaint against these four persons which complaint has been registered in Crime No.82/2016 by Magadi Road PS, which after investigation has ended in filing of the charge sheet against accused persons in C.C.No.22022/2017 for the offences punishable under Sections 420, 506 r/w 34 of IPC and it is at the stage of trial and 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.14006/2016, now pending in C.C.No.4814/2017 and as such, continuation of the proceedings initiated by respondent against the petitioner would be an abuse of process of law and petitioner is being made to face the ordeal of trial and disclose the defence which is the subject matter of proceedings in C.C.No.22022/2017 against four persons and hence, he prays for quashing of the 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 (rebuttal) arises when cheque is 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, 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, the 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 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 vested under Section 482 of Cr.P.C, it would definitely cause injustice to complainant. In the event of proceedings initiated by petitioner-accused against respondent-complainant which is now said to be pending in C.C.No.22022/2017 were to end in an acquittal, then present complainant would be left in the lurch and the petitioner-accused would have benefit of an acquittal by default, though committed an 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 petitioner to raise all such rebuttable evidence which he intends to tender in the pending proceedings and if so tendered, jurisdictional Magistrate would definitely examine the same by taking note of it and pass appropriate and suitable orders thereon. Subject to these observations, this Petition stands rejected.
In view of rejection of above petition, I.A No.1/2018 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE cbc