IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3205 OF 2012 C/W CRIMINAL PETITION NO.3206 OF 2012 CRIMINAL PETITION NO.3011 OF 2012 CRIMINAL PETITION NO.3012 OF 2012 CRIMINAL PETITION NO.3014 OF 2012 IN CRIMINAL PETITION NO.3205 OF 2012 BETWEEN:
SRI R SEKAR AGED ABOUT 58 YEARS S/O RANGASWAMY R/O # 306, 16TH CROSS, UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560080 (BY SRI: K SUMAN, ADVOCATE) AND DR M BASAVARAJ AGED ABOUT 57 YEARS S/O REVANASIDDAPPA R/O # 1637/14 UDAYA RAVI TARALABALU LAYOUT ... PETITIONER VIDYA NAGAR DAVANAGERE ... RESPONDENT (BY SRI: C H HANUMANTHARAYA, SENIOR COUNSEL) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 2.9.2010 PASSED BY THE J.M.F.C-I, DAVANAGERE IN C.C.NO.2343/2010 AND QUASH ALL FURTHER PROCEEDINGS THEREON AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT IN PCR NO.103/2010 (C.C.NO.2343/2010) AGAINST THE PETITIONER U/S 138 OF N.I.ACT.
IN CRIMINAL PETITION NO.3206 OF 2012 BETWEEN:
SRI R SEKAR AGED ABOUT 58 YEARS S/O RANGASWAMY R/O # 306, 16TH CROSS, UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560080 ... PETITIONER (BY SRI: K SUMAN, ADVOCATE) AND DR M BASAVARAJ AGED ABOUT 57 YEARS S/O REVANASIDDAPPA R/O # 1637/14 UDAYA RAVI TARALABALU LAYOUT VIDYA NAGAR DAVANAGERE ... RESPONDENT (BY SRI: C H HANUMANTHARAYA, SENIOR COUNSEL) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.11.2010 PASSED BY THE COURT OF J.M.F.C.-I, DAVANAGERE IN C.C.NO.2981/2010 AND QUASH ALL FURTHER PROCEEDINGS THEREON AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT IN PCR NO.158/2010 (C.C.NO.2981/10) AGAINST THE PETITIONER U/S 138 OF N.I. ACT.
IN CRIMINAL PETITION NO.3011 OF 2012 BETWEEN:
SRI R SHEKAR AGED ABOUT 58 YEARS S/O RANGASWAMY R/O # 306, 16TH CROSS, UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560080 ... PETITIONER (BY SRI: K SUMAN, ADVOCATE) AND SRI.M.SHIVAKUMAR AGED ABOUT 56 YEARS S/O M. REVANASIDDAPPA R/O # 1637/14 UDAYA RAVI TARALABALU LAYOUT VIDYA NAGAR DAVANAGERE ... RESPONDENT (BY SRI: C H HANUMANTHARAYA, SENIOR COUNSEL) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.11.2010 PASSED BY THE J.M.F.C.-I, DAVANAGERE IN C.C.NO.2954/10 AND QUASH ALL FURTHER PROCEEDINGS THEREON AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENTIN PCR NO.159/2010 (C.C.NO.2954/2010) AGAINST THE PETITIONER U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
IN CRIMINAL PETITION NO.3012 OF 2012 BETWEEN:
SRI R SHEKAR S/O RANGASWAMY AGED ABOUT 58 YEARS R/O #306, 16TH CROSS UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560080 (BY SRI: K SUMAN, ADVOCATE) AND SRI M SURESH BABU AGED ABOUT 50 YEARS S/O M RAVANASIDDAPPA, ... PETITIONER R/O #1637/14, UDAYA RAVI TARALABALU LAYOUT, VIDYA NAGAR, DAVANAGERE ... RESPONDENT (BY SRI: C H HANUMANTHARAYA, SENIOR COUNSEL) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.11.2010 PASSED BY THE COURT OF THE J.M.F.C.-I, DAVANAGERE IN C.C.NO.2956/2010 AND QUASH ALL FURTHER PROCEEDINGS THEREON AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT IN PCR NO.160/2010 (C.C.NO.2956/2010) AGAINST THE PETITIONER U/S 138 OF N.I. ACT.
IN CRIMINAL PETITION NO.3014 OF 2012 BETWEEN:
SRI R SHEKAR AGED ABOUT 58 YEARS S/O RANGASWAMY R/O #306, 16TH CROSS, UPPER PALACE ORCHARDS, SADASHIVA NAGAR BANGALORE 560080 ... PETITIONER (BY SRI: K SUMAN, ADVOCATE) AND SMT AKSHATHA PRABU AGED ABOUT 33 YEARS W/O PRABHU PRASAD DAUGHTER INLAW OF M REVANASIDDAPPA R/O #1637/14, UDAYA RAVI TARALABALU LAYOUT, VIDYA NAGAR, DAVANAGERE ... RESPONDENT (BY SRI: C H HANUMANTHARAYA, SENIOR COUNSEL) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.11.2010 PASSED BY THE J.M.F.C.-I, DAVANGERE IN C.C.NO.2957/2010 AND QUASH ALL FURTHER PROCEEDINGS THEREON AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT IN PCR NO.161/2010 (C.C.NO.2957/2010) AGAINST THE PETITIONER U/S 138 OF N.I. ACT.
THESE CRIMINAL PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents.
2. Though the learned counsel for the petitioner has urged large number of grounds in the petitions assailing the validity of the proceedings initiated against the petitioner under Section 138 of N.I. Act, yet, on going through the records, it is seen that these petitions deserve to be allowed primarily on the ground of defect in the orders of taking cognizance by the learned Magistrate, Davanagere. In the above petitions, the learned Magistrate has passed identical orders which read as follows:-
26.11.2010 “Complainant absent. E.P. file, Accepted for the day.
Heard from the complainant’s Counsel. Perused the complaint. Prima-facie the complainant has made out grounds to proceed against the accused, since, the essentials of Section 138 of N.I. Act are prima-facie complied with. Hence, cognizance is taken. Register the case in C.C. Register, issue summons to the accused by R.P.A.D.
R/By. 22.12.2010.
Sd/- 26.11.10 J.M.F.C.
DAVANAGERE”
3. I have gone through the complaints filed in each of the above cases. The said complaints are filed under section 200 Cr.P.C. In para 2 of the complaints, the status of the complainant and the respondent is narrated. In para 3, it is stated that accused issued cheques on 9.01.2010 as detailed below and he has also executed an extended MOU on 15.04.2010 and issued cheques for remaining 26% of shares as detailed below.
There is nothing in the complaints to indicate that either the original MOU or the extended MOU dated 15.04.2010 was enclosed to the private complaints. In the absence of the said MOU, the complaint lacks necessary averments making out the ingredients of the offence under Section 138 of N.I. Act. In the said circumstances, the learned Magistrate ought to have looked into the contents of the complaints before taking cognizance of the alleged offence. The very fact that crucial documents referred in the complaints were not enclosed to the complaints indicate that the learned Magistrate has not applied his mind to the facts of the cases and has mechanically passed the said orders which therefore cannot be sustained.
It is also pointed out by the learned counsel that sworn statements of the complainant also have not been recorded. In the face of these defects, the impugned orders cannot be sustained.
Consequently, the petitions are allowed. The orders passed by the learned Magistrate, Davanagere in the respective petitions dated 2.09.2010 and 26.11.2010 and issuing summons to the petitioner are hereby quashed.
The matters are remitted to the learned Magistrate, Davanagere to reconsider the matters afresh from the stage of receiving the complaints. The learned Magistrate, Davanagere shall not be influenced by any of the observations made in this order while considering the matters afresh.
All the contentions urged by the petitioner in these petitions are kept open.
Sd/- JUDGE *mn/-