IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5013/2017 BETWEEN:
SRI.M.V.GOVINDASWAMY S/O LATE VENKATARAMA NAIDU AGED ABOUT 58 YEARS PROPRIETOR OF SRI VENKATESHWARA ENTERPRISES CUM HP GAS DISTRIBUTOR, NO.108 PIPELINE ROAD, BAHUBALINAGARA MES ROAD, BENGALURU-13.
... PETITIONER (BY SRI. G.M. SRINIVASAREDDY, ADVOCATE) AND:
SRI.T.RAJENDRA PRASAD S/O LATE TUMMALA SOMAIAH CHOWDARY, R/AT NO.49/2 9TH MAIN ROAD, 3RD CROSS MATHIKERE, M.K. EXTENSION BENGALURU-560 054.
... RESPONDENT (BY SRI. M.SHIVAPRAKASH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO MODIFY THE ORDER DATED 12.06.2017 ON THE FILE OF XXII ACMM, BANGALORE IN C.C.NO.9392/2017 (PCR NO.3833/2017) REGISTERED AGAINST THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for admission, by consent of learned Advocates appearing for parties, it is taken up for final disposal.
2. Petitioner is the accused in C.C.NO.9392/2017 which proceedings is an off shoot of PCR No.3833/2017 filed by respondent herein alleging that cheque issued by petitioner in discharge of a debt for ` 1,86,17,577/- and when it came to be presented, it has been dishonoured for want of funds and thereby petitioner had committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881. Learned Magistrate on taking cognizance of the offence issued summons to the accused and on appearance, accused filed an application under Section 436 Cr.P.C. along with an application under Section 445 Cr.P.C. for enlarging accused on bail. Said application has been allowed by trial Court by order dated 12.06.2017 which reads as under:
“Perused the bail application the alleged offences are triable by this court.
Looking to the cheques amount is worth of Rs.1,86,17,577/-. Hence the said bail application is hereby allowed, accused shall execute P/B of Rs.50,00,000/- with cash security of Rs.5,00,000/-. Take bonds, Accordingly.
For Plea Accused present plea recorded he has denied is said accusation and he claims for trial.
Counsel for accused prays time for deposit of cash surety amount, time granted, call on 20-06-2017.”
3. It is the contention of Sri.Srinivasareddy, learned Advocate appearing for petitioner that imposition of cash security virtually amounts to denial of bail and in support of his submission, he has relied upon the following judgments:
(1) ILR 1992 KAR 2894 AFSAR KHAN vs STATE (2) (2009)13 SCC 769 AMARJIT SINGH vs STATE OF NCT OF DELHI 4. Per contra, learned Advocate appearing for respondent would contend that learned Magistrate having noticed the quantum of cheque amount, has rightly imposed cash security for ` 5 lakhs on the petitioner and lit was also on account of accused himself having filed an application for enlarging him on bail on furnishing cash security.
5. As rightly contended by Sri Srinivasareddy, learned Advocate appearing for petitioner, imposition of a condition of which accused would be unable to comply, would amount to denial of bail as held by Hon’ble Apex Court in AMARJIT SINGH vs STATE OF NCT OF DELHI reported in (2009)13 SCC 769. .
6. Taking into consideration the fact that trial Court has enlarged the petitioner on bail conditionally, it would suffice in the peculiar circumstances of the case, if petitioner is allowed to offer solvent surety for the likesum namely, sum of ` 5 lakhs which trial Court has insisted as cash security and it would meet the ends of justice. Trial Court is also directed to dispose of the proceedings expeditiously within a time frame to allay the apprehension expressed by learned Advocate appearing for complainant.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is hereby allowed.
(2) Order dated 12.06.2017 passed by XII Addl.C.M.M.Bengaluru in C.C.No.9392/2017 is hereby modified and petitioner is permitted to furnish one solvent surety for sum of ` 5 lakhs and also execute a personal bond as already ordered by trial Court.
(3) Jurisdictional trial Court shall dispose of the proceedings expeditiously at any rate, within 30 days from the date of receipt of copy of this order and subject to both parties co- operating with the trial Court.
SD/- JUDGE *sp