IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.8392 OF 2018 BETWEEN:
SRI. K. GOPALA RAJU S/O K. CHANGAMARAJU AGED ABOUT 57 YEARS RESIDING AT PENT HOSUE SRI SAI SAGAR APARTMENTS 17TH CROSS, 15TH MAIN, 5TH PHASE JP NAGAR, BANGALORE-560 078 … PETITIONER (BY SHRI. BALAJI RAGHUNATHAN, ADVOCATE) AND:
M/S V.S.V BUILDERS REPRESENTED BY ITS MANAGING PARTNER T. KUMAR S/O LATE T. KONDAMA NAIDU AGED ABOUT 60 YEARS RESIDING AT NO.32, 15TH CROSS ASHOK NAGAR BANASHANKARI 1ST STAGE BANGALORE-560 050 ... RESPONDENT (BY SHRI. A. GANESH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 30.10.2018 AND CONSEQUENTLY BE PLEASED TO ALLOW THE APPLICATION FILED UNDER SECTION 91(2) OF THE CR.P.C.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner is accused in the proceedings initiated by the respondent pursuant to dishonour of a cheque for Rs.52,50,000/- alleged to have been issued by the accused.
2. It is petitioner’s case that a set of 10 cheques were stolen by the complainant. The instant proceedings in Trial Court are in respect of cheque bearing No.105584 dated 14.07.2016 drawn on Central Bank of India, Sarakki Layout Branch, Bengaluru.
3. According to the complainant, petitioner has received the said sum of Rs.52,50,000/- in the following manner;
(i) by RTGS dated 28.10.2015 for Rs.25,00,000/-;
(ii) by RTGS dated 02.12.2015 for Rs.19,00,000/-;
(iii) by cheque bearing No.646261 dated 30.01.2016 drawn on Karnataka Bank, Basavanagudi Branch, Bengaluru, for a sum of Rs.8,50,000/-.
4. Learned advocate for the petitioner submits that accused does not dispute receipt of the sum of Rs.25,00,000/- and Rs.19,00,000/- by RTGS. However, the payment alleged to have been made through cheque bearing No.646261 is disputed. Petitioner apprehends that complainant may have withdrawn the said money in the name of the accused through a bearer cheque. Complainant, in his cross-examination, has stated that the said cheque (646261) for a sum of Rs.8,50,000/- is an ‘Account Payee’ cheque tendered by the accused himself.
5. Learned advocate for the petitioner further submitted that since the specific stand of the petitioner is that the amount of Rs.8,50,000/- has not been received by him though claimed by the complainant that it has been paid through ‘Account Payee’ cheque, the proof of payment is necessary and therefore accused filed an application under Section 91(2) of Cr.P.C., requesting the learned Trial Judge to direct the Branch Manager of Karnataka Bank, Basavanagudi Branch to produce the original cheque bearing No.646261 dated 30.01.2016.
6. Shri A. Ganesh, learned advocate for the complainant-respondent submitted that it is not necessary to summon the cheque because the Balance sheet issued by the bank shows transfer of Rs.8,50,000/- in the name of accused.
7. Parties are at variance with regard to the encashment of the cheque bearing No.646261. Learned advocate for the petitioner submitted that petitioner shall be satisfied, if the banker is directed to produce the cheque bearing No.646261 dated 30.01.2016 and he does not press other prayers made in the said application filed before the Trial Court.
8. Learned advocate for the petitioner has made available a copy of the cross-examination of the complainant. In the cross-examination, complainant has stated that Rs.8,50,000/- has been paid through an ‘Account Payee’ Cheque. Therefore, controversy is whether it is an Account payee cheque or a bearer cheque. Hence, in the opinion of this Court, production of the cheque is necessary. Since, the petitioner has given up all other prayers made in the said application and asserts that the withdrawal is through a bearer cheque and further, he is ready to face any consequences, if the payment is found to be the one made through Account payee cheque, this Court is of the view that ends of justice would be met by directing the Branch Manager to produce the cheque by imposing strict terms. Hence, the following;
ORDER (i) Application dated 06.10.2017 filed under Section 91(2) of Cr.P.C., before Trial Court is allowed in part;
(ii) Branch Manager of Karnataka Bank, Basavanagudi Branch, Bengaluru, is directed to produce the original cheque bearing No.646261 dated 30.01.2016 before the Trial Court; and (iii) It is made clear that in the event, cheque in question has been drawn as *an ‘Account Payee’ cheque and not as *a ‘bearer’ cheque, petitioner shall be liable to pay a cost of Rs.50,000/- to the complainant, in addition to initiation of such other proceedings as the learned Magistrate may deem appropriate.
9. Petition is disposed of accordingly.
No costs.
Sd/- JUDGE AV * Correction carried out vide Court Order dated 26.09.2019.