IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.3824 of 2014 BETWEEN:
SRI R KUMARASWAMY S/O RAMASWAMY AGED ABOUT 42 YEARS, NO.804, 4TH CROSS, 4TH MAIN ROAD, GANGONDANAHALLI, BANGALORE-39 (BY SRI. SAMPATH BAPAT, ADV.) AND SRI MUNIYAN AGED ABOUT 40 YEARS S/O. THOPAI KOUNDAR NO.49, 1ST FLOOR, GARDEN VILLS, 1ST MAIN ROAD, NAGARABHAVI MAIN ROAD, BANGALORE-560072 (RESPONDENT - SERVED & UNREPRESENTED) ... PETITIONER ... RESPONDENT THIS CRL.P. IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 04.12.2012 PASSED BY THE XVI ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.NO.23423/2012 AND CONSEQUENTLY DISMISS THE PRIVATE COMPLAINT AND PASS SUCH OTHER AND FURTHER ORDER AS ARE JUST UNDER THE CIRCUMSTANCES OF THE CASE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner.
Respondent is served and unrepresented.
2. The petitioner has called in question the validity of the order dated 04.12.2012 passed by the XVI Addl. Chief Metropolitan Magistrate in C.C.No.23423/2012 whereby the learned Magistrate has directed registration of a case against the petitioner herein for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881, and issue summons to the petitioner.
3. The learned counsel for petitioner, at the outset, has pointed out that the learned Magistrate has issued summons to the petitioner based on the sworn statement of the complainant. The said sworn statement was given by way of an affidavit. The complainant is named as Sri. Muniyan, S/o. Thopai Kounder, but the statement is sworn by one Sri. R. Kumaraswamy, S/o. Ramaswamy. Further, in the verification it is stated that “I, R. Shivakumar, S/o. K. Doddanna do hereby declare that what is stated above are true and correct to the best of my knowledge and belief.”
4. The impugned order discloses that without looking into the said errors, the learned Magistrate has taken cognizance of the offence and issued summons to the petitioner. The complainant has not given his sworn statement. The sworn statement relied on by the petitioner relates to the statement of one Sri. R. Kumaraswamy who was not the complainant. Therefore, the impugned order being wholly illegal, cannot be sustained.
5. Accordingly the petition is allowed. The impugned order dated 04.12.2012 is quashed. The matter is remitted to the learned Magistrate to consider the complaint afresh from the stage of receiving the complaint and thereafter proceed in accordance with law.
Sd/- Judge RD