IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.14/2019 C/W CRIMINAL PETITION NO.8619/2018 IN CRL.P. NO.14/2019:
BETWEEN:
SRI. L. GOPINATH S/O G.N. LAKSHMIPATHI AGED ABOUT 64 YEARS RESIDING AT NO.23 PYCRAFT GARDEN NUNGAMBKKAM CHENNAI - 600 006. ... PETITIONER (BY SRI. S. GUNASHEKAR ON BEHALF OF SRI. D.N. MANJUNATH., ADVOCATE) AND:
1. M/S VISION DREAM REALITY PVT. LTD., A PRIVATE LIMITED COMPANY HAVING THEIR REGISTERED OFFICE AT SM2, IV FLOOR SHALIMAR GALAXY, 139 1ST MAIN ROAD, SESHADRIPURAM BANGALORE - 560 020 REPRESENTED BY ONE OF ITS DIRECTOR MR. PRAFULLDOMADIA.
2. MR. RASHMIKANTDELIWALA S/O MANEKLALDELIWALA AGED ABOUT 67 YEARS HAVING THEIR REGISTERED OFFICE AT SM2, IV FLOOR SHALIMAR GALAXY, 139 1ST MAIN ROAD, SESHADRIPURAM BANGALORE - 560 020.
... RESPONDENTS (BY SRI. PUTTIGE R RAMESH., ADVOCATE FOR R-1 AND R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED:28.07.2018 PASSED IN C.C.NO.21398/2018 EARLIER REGISTERED AS P.C.R.NO.4048/2018 PENDING ON THE FILE OF XLII ADDL.C.M.M., BENGALURU BY ISSUING PROCESS TO THE PETITIONER/ACCUSED NO.2 BEING ILLEGAL, WITHOUT JURISDICTION AND MORESO AN ABUSE OF DUE PROCESS OF LAW AND MORESO CONTRARY TO THE PROVISIONS OF SECTION 138 OF N.I. ACT.
IN CRL.P. NO.8619/2018:
BETWEEN:
SRI. L. GOPINATH S/O G.N. LAKSHMIPATHI AGED ABOUT 64 YEARS RESIDING AT NO.23 PYCRAFT GARDEN NUNGAMBKKAM CHENNAI - 600 006. ... PETITIONER (BY SRI. GUNASHEKAR ON BEHALF OF SRI. D.N. MANJUNATH., ADVOCATE) AND:
1. M/S VISION DREAM REALITY PVT. LTD., A PRIVATE LIMITED COMPANY HAVING THEIR REGISTERED OFFICE AT SM2, IVTH FLOOR SHALIMAR GALAXY, 139 1ST MAIN ROAD, SESHADRIPURAM BANGALORE - 560 020 REPRESENTED BY ONE OF ITS DIRECTOR MR. PRAFULLDOMADIA.
2. MR. PRAFULLDOMADIA S/O JESUKH LAL AGED ABOUT 69 YEARS HAVING THEIR REGISTERED OFFICE AT SM2, IVTH FLOOR SHALIMAR GALAXY, 139 1ST MAIN ROAD, SESHADRIPURAM BANGALORE – 560 020.
... RESPONDENTS (BY SRI. N. DINESH RAO., ADVOCATE FOR R-1 & R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED:20.06.2018 PASSED IN C.C. NO.16669/2018 EARLIER REGISTERED AS PCR NO.4049/2018 PENDING ON THE FILE OF THE HON'BLE 42ND ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU BY ISSUING PROCESS TO THE PETITIONER/ACCUSED NO.2 BEING ILLEGAL, WITHOUT JURISDICTION AND MORE SO AN ABUSE OF DUE PROCESS OF LAW AND MORE SO CONTRARY TO THE PROVISION OF SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who is arraigned as accused No.2 in C.C.No.21398/2018 and C.C.No.16669/2018 respectively which proceedings have been initiated by respondents 1 and 2 in these petitions alleging that they had entered into a Joint Development Agreement with the petitioner and his brother Sri. L Ramprakash (accused No.1) for development of the properties bearing Nos.2 and 2/1, situated at Seshadripuram, Bangalore and agreed to pay ` 4 Crores and out of which ` 3 Crores was refundable deposit and `1 Crore was non-refundable deposit and pursuant to same, `2.80 Crores had been paid on different dates. It is also alleged that on account of certain disputes having arisen between the parties, complainant agreed to cancel the joint development agreement which came to be accepted by the accused on 15.02.2016 vide Annexure-R-2 whereunder it was resolved that amount which was to be repaid by the owners namely, petitioner in these petitions as well as his brother Sri.L.Ramprakash. Cheques are said to have been issued and alleging said cheques when presented have been dishonoured for want of funds and as such it is alleged that they have committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘Act’ for short). On these line complaint in question came to be filed. Hence, petitioner who is arraigned as accused No.2 is before this Court.
2. I have heard the arguments of Sri. S. Gunashekar, learned Advocate appearing on behalf of Sri. D.N.Manjunath for petitioner and Sri. Puttige Ramesh, learned Advocate appearing for respondents- 1 and 2 in both the petitions. Perused the records.
3. It is the contention of Sri. Gunashekar, learned Advocate appearing for petitioner that complaints in question do not disclose that petitioner (Accused No.2) having issued cheques or such cheques having been dishonoured and as such continuation of the proceedings against the petitioner is not called for. Hence, he prays for quashing of the said proceedings.
4. Per contra, Sri. Puttige R. Ramesh, learned Advocate appearing for respondents has contended that petitioner along with his brother Sri. L.Ramprakash had entered into joint development agreement and jointly they have agreed to refund the amount they had received from the complainant and said amount has been repaid by cheques which have been dishonoured when presented for encashing and as such, petitioner herein is also being prosecuted for the offence punishable under Section 138 of the Act. Hence, he has prayed for dismissal of the petitions.
5. Having heard the learned Advocates appearing for parties and on perusal of records, complaints as well as statutory notices preceding to filing of the said complaints it would clearly disclose that the subject matter of two complaints i.e., P.C.R.No. 4048/2018 (C.C.No.21398/2018) and P.C.R.No.
4049/2018 (C.C.No.16669/2018) are initiated by respondent Nos. 1 and 2 herein against the petitioner as well as his brother alleging dishonour of two cheques bearing Nos.000484 and 000483 dated 30.09.2017 favouring second complainant drawn on ICICI Bank, Kumara Park Branch, Bangalore. Said cheques have not been honoured by the banker of the drawer. The statutory notices under Section 138 of the Act has been issued by the complainant which is also produced along with petitions i.e., on 22.01.2018 which would clearly disclose that it is in respect of these two cheques i.e., 000483 and 000484, two complaints have been filed. In fact, a specific averment is made in the respective complaints insofar as the petitioner (Accused No.2) is concerned for having issued cheque bearing No.000090 dated 16.10.2017 drawn on Standard Chartered Bank for `15 Lakhs. The averment made in the complaint reads as under:
In PCR No.4048/2018 (Crl.P.14/2019) “ 14. The Accused No.2 had also issued cheque bearing No.000090 dated 16.10.2017 drawn on Standard Chartered Bank, for Rs.15,00,000/- to the complainant No.1 Company.”
In PCR No.4049/2018 (Crl.P.No.8619/2018) “16. It is submitted that the Accused No.2 had also issued cheque bearing No.000090 dated 16.10.2017 drawn on Standard Chartered Bank for Rs.15,00,000/- to the Complainant No.1 Company.”
6. The above averments made in the complaint as well as the demand made in the notices which preceded the filing of the complaints would clearly disclose that it is in respect of two cheques only complaints have been filed. As such there was no role whatsoever played by the petitioner herein in issuance of these two cheques namely, 000484 and 000483 dated 30.09.2017 favouring complainant No.2 and said cheques have been issued by the accused No.1 i.e., brother of petitioner namely, Sri. L. Ramprakash and proceedings against petitioner cannot be continued and as there is no criminality which can be attached to the petitioner insofar as these two cheques are concerned.
Continuation of proceedings against the petitioner herein would definitely be an abuse of process of law. As such prayer sought for in these petitions deserves to be granted. However, it is made clear that if any cheque which has been issued by petitioner (accused No.2) favouring the complainants has been dishonoured and proceedings have been initiated, it is needless to state that complainants would be at liberty to pursue their claim in the manner known to law.
Hence, I proceed to pass the following:
ORDER (1) Criminal Petitions 14/2019 and 8619/2018 are allowed.
(2) Proceedings initiated against petitioner (Accused No.2) in C.C.No.21398/2018 and C.C.No.16669/2018 for the offence punishable under Section 138 of the Act pending on the file of XLII Additional Chief Metropolitan Magistrate, Bengaluru arising out of P.C.R.No. 4048/2018 and 4049/2018 respectively stands quashed and petitioner is acquitted of the alleged offences and subject to observations made hereinabove.
SD/- JUDGE Sp/RU