IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7485/2015 BETWEEN:
SRI MADHUSUDHAN G. B S/O G BASAVARAJU AGED 36 YEARS NO.6/2, RAILWAY PARALLEL ROAD KUMARA PARK EAST BANGALORE-560 001.
(BY SRI.SUNIL S RAO, ADV. FOR SRI.T SESHAGIRI RAO, ADV.) AND:
1. SRI DAYANANDA PAI S/O LATE NARASIMHA PAI AGED ABOUT 69 YEARS R/AT NO.10/1 LAKSHMINARAYANA COMPLEX PALACE ROAD BANGALORE-560 052.
2. SRI C. M. LOKESH AGED MAJOR R/AT NO.80 3RD CROSS, 21ST MAIN GAYATHRI HARI LAYOUT BEHIND L.I.C.OFFICE BASAVESHWARANAGAR ... PETITIONER SHANKAR MUTT BANGALORE-560 079.
(BY SRI.S MAHESH, ADV. FOR R1 R2 SERVED AND UNREPRESENTED) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ORDER DATED 03.11.2010 IN P.C.R.NO.37738/2010 PRESENTLY IN C.C. NO.46990/2010 IN THE COURT OF THE XV, A.C.M.M. AT BENGALURU TAKING COGNIZANCE OF THE OFFENCE U/S.138 OF N.I. ACT AND ISSUANCE OF PROCESS AGAINST THIS PETITIONER THEREIN.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned counsel for respondent No.1. Respondent No.2 is served and unrepresented.
Petitioner is aggrieved by the criminal action initiated against him for the alleged offence punishable under section 138 of Negotiable Instruments Act (“N.I. Act” for short).
2. Learned counsel appearing for petitioner contends that petitioner was not the signatory of the cheque in question. The averments made in the complaint go to show that the cheque in question was drawn by accused No.1 and under the said circumstances, offence under section 138 of N.I. Act is attracted only against drawer of the cheque namely accused No.1 who alone is liable for dishonour of the said cheque and hence, prosecution of the petitioner is wholly illegal and abuse of process of court.
3. Refuting the submissions, learned counsel for respondent No.1 referred to Ex.P2 marked before the Trial Court and would submit that, while executing On Demand Promissory Note, the petitioner herein along with accused No.1 and one Pramod Jain had given a covering letter in favour of the complainant wherein it is stated that, petitioner and others had delivered the subject cheque bearing No.137653 drawn on ICICI Bank dated 8.2.2010 drawn by C.M.Lokesh and hence, petitioner is also equally liable for consequences of dishonour of the cheque. Notice was issued to both the accused persons and hence, the petitioner is also equally liable to be prosecuted under Section 138 of N.I Act.
4. Law is now well settled that, prosecution under section 138 of N.I. Act could be maintained only against drawer of the cheque and not against any other persons. Though by executing an On Demand Promissory Note, petitioner might have incurred liability in terms of said On Demand Promissory Note, but the prosecution for the dishonour of the cheque could be maintained only in terms of section 138 of N.I. Act only against the drawer of the cheque namely C.M.Lokesh. The averments made in the complaint and the contents of the covering letter (Ex.P2) referred to by learned counsel for respondent No.1, go to show that the cheque in question was drawn by C.M.Lokesh namely accused No.1. Merely because the said cheque was issued along with covering letter and On Demand Promissory Note signed by petitioner does not render the petitioner liable for dishonour of the said cheque under section 138 of N.I. Act. Hence, prosecution of the petitioner being contrary to section 138 of N.I. Act cannot be sustained. The Hon’ble Supreme Court in P.J.Agro Tech Limited & Others vs. Water Base Limited, (2010) 12 SCC 146, at para 13 has held has under:-
“13. From a reading of the said section, it is very clear that in order to attract the provisions thereof a cheque which is dishonoured will have to be drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability. It is only such a cheque which is dishonoured which would attract the provisions of Section 138 of the above Act against the drawer of the cheque.”
Accordingly, petition is allowed. Prosecution in C.C.No.46990/2010 before the XXI ACMM, Bangalore is quashed only insofar as the petitioner herein namely accused No.2 is concerned. Prosecution shall continue against other accused as per law. Since the matter has been pending on the file of the Trial Court since 2010, Trial Court is directed to dispose of the matter as expeditiously as possible.
Sd/- JUDGE Bss