IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7063/2015 BETWEEN SRI RAVISHANKAR AGED 38 YEARS, SON OF SUBRAHMANYA BHAT, R/A. #201, II FLOOR, NORTH BLOCK MANIPAL CENTER 47, DICKENSON ROAD, BANGALORE 560042.
ADDRESS MENTIONED IN THE COMPLAINT COPY:-
SUSARA COMPUTER TEACHER, NEAR MASJIDH, C/O SUBRAMANYA HOTEL, KODLIPET TOWN, SOMWARPET TALUK – 571 236. ... PETITIONER (BY SRI.P P HEGDE, ADVOCATE) AND K M LAKSHMANA AGED 51 YEARS, SON OF MUTTANNA, RESIDING AT GARAGANDURU VILLAGE, KUMBUR POST, MADAPURA, SOMWARPET. ... RESPONDENT (BY SRI. M SHIVAPRAKASH, ADVOCATE - ABSENT) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.474/2009 PENDING ON THE FILE OF THE COURT OF CIVIL JUDGE AND JMFC, SOMWARPET AGAINST THIS PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND ALL THE FURTHER PROCEEDINGS IN THE SAID CASE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought to quash the proceedings initiated against him in C.C.No.474/2009 pending on the file of Civil Judge & J.M.F.C at Somwarpet for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).
2. Heard learned counsel for the petitioner.
Learned counsel for the respondent is absent. Perused the records.
3. Respondent herein filed a complaint under Section 200 of Cr.P.C read with Section 142 of the Act on the ground that the cheque issued by the petitioner herein for a sum of Rs.1,80,000/- towards repayment of the amount borrowed by the petitioner, when presented for encashment was returned for the reason “funds insufficient”.
4. Learned counsel for the petitioner submits that during the course of trial, the petitioner herein took up a specific stand that the cheque in question was not drawn by the petitioner. It did not bear the signature of the petitioner and he was not the drawer of the cheque in question, therefore, the prosecution of the petitioner for the alleged offence under Section 138 of the Act is patently erroneous and a clear abuse of process of Court. Further, referring to the relevant documents produced before the trial Court, the learned counsel has emphasized that the account in respect of which the dishonoured cheque was issued stood in the name of one Sri K. Subramanya Bhat and therefore, prosecution of the petitioner for the alleged offence punishable under Section 138 of the Act is liable to be quashed.
5. Needless to say that Section 138 of the Act renders only the drawer of the cheque liable for the consequences of dishonour of the cheque. The Section in unambiguous terms says that where any cheque drawn by a person on an account maintained by him with a 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, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence.
6. In view of this specific provision, only the drawer of the cheque is liable for prosecution for the offence punishable under Section 138 of the Act in case of dishonour of the cheque for reasons mentioned in the Section.
7. In the case on hand, the material produced before the Court discloses that the cheque in question was drawn by one K. Subramanya Bhat. The said cheque is issued on the account maintained by the aforesaid K. Subramanya Bhat and not by the petitioner herein. The petitioner is not the drawer of the cheque and said cheque is not drawn on the account maintained by the petitioner. As a result, the essential requirements of Section 138 of the Act having not been satisfied, the prosecution of the petitioner for the alleged offence is wholly opposed to the provisions of Section 138 of the Act. Hence, to secure the ends of justice, the petition deserves to be allowed.
Accordingly, the petition is allowed. The proceedings initiated against the petitioner for the alleged offences punishable under Sections 138/142 of the Act are hereby quashed.
PYR Sd/- JUDGE