IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9625/2018 BETWEEN:
SRI. N.B. HARISH S/O BYRAPPA AGED ABOUT 31 YEARS R/AT NIDARAMANGALA VILLAGE AND POST, TEKAL HOBLI MALUR TALUK KOLAR DISTRICT-563130.
... PETITIONER (BY SRI. M.R. NANJUNDA GOWDA, ADVOCATE) AND:
SRI. R. NARAYANASWAMY S/O LATE RANGANATHAPPA AGED ABOUT 49 YEARS R/AT BEGLI HOSAHALLI VILLAGE AND POST KOLAR TALUK-563126.
(BY SRI. NAVEEN KUMAR, ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.691/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, KOLAR.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The only issue which arises for consideration in this petition is:
“Whether order taking cognizance of the offence alleged against petitioner is just and proper?”
2. Respondent herein filed a complaint under Section 200 Cr.P.C. against petitioner alleging that he has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘Act’), namely had not repaid the amount borrowed and cheque issued for discharging the debt has not been honoured. It is also alleged that demand made in the notice issued in compliance of Section 138 of the Act had not been complied. Learned Magistrate by order dated 04.07.2016 has taken cognizance of the offence punishable under Section 138 of the Act.
3. I have heard the arguments of Sri M.R. Nanjunda Gowda, learned Advocate appearing for petitioner and Sri. Naveen Kumar, learned Advocate who has entered appearance on behalf of the respondent-complainant.
4. It is the contention of Sri. M.R. Nanjunda Gowda, learned Advocate appearing for petitioner that complaint has been filed belatedly i.e., 30 days after the period prescribed under Section 138 of the Act and as such without issuing notice to the petitioner-accused or applying judicious mind with regard to condonation of delay, cognizance has been taken and as such, order taking cognizance of the offence and continuation of the proceedings against petitioner be quashed.
5. Per contra, Sri. Naveen Kumar, learned Advocate appearing for respondent would support the impugned order passed by the trial Court and contends that proceedings are already continued before trial Court and there is no infirmity in the order passed by the trial Court. Hence, he prays for rejection of the petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records, this Court is of the considered view that it would be just and necessary to notice some of the dates and sequence of events which would have bearing on the contentions raised in this petition.
complainant to the accused calling upon the accused to pay the amount under the subject cheque 5 07.05.2016 Service of legal notice on the petitioner-accused.
6 23.05.2016 Last date for repayment of demand made in the legal notice namely, 15th day for the accused to repay
7. As could be seen from the above dates and sequence of events, on dishonour of the cheque on 28.04.2016, within 15 days thereof, complainant has got issued notice to the petitioner –accused i.e., on 03.05.2016, which has been served on the petitioner on 07.05.2016. Accused had time till 15th day from the date of receipt of the notice to comply with the demand made by the complainant which expired on 23.05.2016 (excluding the first or last date of these two dates). Thus, cause of action for the respondent-complainant to file a complaint arose from 23.05.2016 and complaint had to be filed within 30 days i.e., on or before 22.06.2016. However, undisputedly, complaint came to be filed on 04.07.2016 i.e., beyond the period prescribed under Section 138(c) of the Act. However, there is no explanation whatsoever forthcoming from the complainant for cause of delay and no application had been filed for condoning the delay.
8. The learned trial judge without considering these aspects has taken cognizance of the offence and issued summons to the petitioner-accused. Hon’ble Apex Court under similar circumstances in the matter of K.S. JOSEPH VS. PHILIPS CARBON BLACK LTD., AND ANOTHER reported in AIR 2016 SC 2149 has held that complaint filed beyond the period prescribed under Section 138 of the Act, cognizance of offence taken by the Magistrate without even issuing notice to respondent and without even condoning delay, then such order is liable to be quashed. The principles laid down by the Hon’ble Apex Court in K.S.Joseph’s case is squarely applicable to the facts on hand. In the instant case complainant admit in paragraph 6 that cause of action for filing the complaint arose on or before 7.5.2016 and also the fact that same was filed on 04.07.2016, yet contending there is no delay is erroneous in the light of aforestated discussion.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Order dated 04.07.2016 passed by Principal Civil Judge and JMFC, Kolar in C.C.No.492/2016 taking cognizance of the offence punishable under Section 138 of the Act against petitioner is hereby set aside and matter is remitted back to the learned trial judge to examine the issue of delay and pass appropriate orders thereon by judicious application of mind by keeping in mind proviso to Section 142(1)(b) of the Act.
In view of allowing of the petition, I.A.No.1/2018 for stay does not survive for consideration. Accordingly, it is hereby rejected.
SD/- JUDGE RU