IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.9612 OF 2016 BETWEEN:
SRI. T.P. MOOSA KUTTY S/O. SRI. MOHAMMED AGED ABOUT 53 YEARS RESIDING AT THOTTAKARA PALLIYALIL KULAMANGALAM, VALANCHERY POST MALAPPURAM DISTRICT KERALA STATE – 679 532 …PETITIONER (BY SRI. USMAN P., ADVOCATE) AND:
SRI. M. THIMME GOWDA S/O. LATE MUTHEGOWDA AGED ABOUT 71 YEARS RESIDING AT NO.65, VANI VILAS ROAD, BASAVANAGUDI BANGALORE – 560 004 ...RESPONDENT (BY SRI. SANTHOSH S. GOGI, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 27.09.2016 PASSED IN PCR NO.172/2016 THEREBY ORDERING TO ISSUE PROCESS AGAINST THE PETITIONER AND ALL FURTHER PROCEEDINGS IN C.C. NO.22152/2016 REGISTERED IN PURSUANCE THEREOF AGAINST THE PETITIONER FOR AN OFFENCE P/U/S. 138 OF N.I. ACT ON THE FILE OF XVI A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner and learned counsel for the respondent.
2. Petitioner is aggrieved by the order dated 27.09.2016 passed in PCR No.172/2016 thereby ordering process to the petitioner to face trial for the offence punishable under section 138 of the Negotiable Instruments Act, 1888 [‘Act’, for short]. Petitioner has also sought to quash the said proceedings pending in CC No.22152/2016.
3. Brief facts essential for disposal of the petition are as follows:
The respondent herein filed a private complaint under section 200 of Cr.PC seeking action against petitioner and another accused for dishonour of cheque for Rs.1 Crore. The petition was registered as PCR No.12455/2008. Process was ordered to the petitioner herein on 30.09.2008. Without entering appearance, the petitioner challenged issuance of process before this Court by filing Criminal Petition No.5809/2013 and by order dated 6.12.2013, an interim order of stay was granted by this Court insofar as petitioner is concerned, till the next date of hearing. The said interim order of stay is still in operation.
4. That being the case, in view of the decision of the Hon’ble Supreme Court in the case of ‘DASHRATH RUPSINGH RATHOD v. STATE OF MAHARASHTRA AND ANOTHER’, reported in AIR 2014 SC 3519, the trial Court directed to return the complaint to the Complainant’s counsel after obtaining proper identification to present the same before the proper court within 30 days from the date of return of the complaint. Accordingly, complainant took return of the said complaint and presented the same before the Court of Judicial Magistrate, I Class, Tirur, Kerala and the same was renumbered as CMP No.4386/2015. It is not in dispute that along with said petition, an application was filed by the Complainant seeking condonation of delay in presentation of the said petition. The said application was numbered as CMP No.4387/2015. That being the case, in view of the amendment to the NI Act by way of incorporation of section 142A of the Act, respondent presented the complaint before the Court of XVI Additional Chief Metropolitan Magistrate. Instead of presenting the original complaint, respondent/complainant presented a fresh complaint on the same cause of action. The same is numbered as PCR No.172/2016. The learned Magisrate took cognizance of the offence afresh and recorded sworn statement of the complainant and issued summons to the petitioner and at that stage, petitioner herein filed the instant petition under section 482 of Cr.PC seeking to quash the order dated 27.09.2016 whereby process was issued to the petitioner.
5. Learned counsel for the petitioner submits that the original complaint filed by the respondent/complainant was taken back by the complainant and the same has not been presented before the Court so far, on the other hand, a fresh complaint was filed before the XVI Additional Chief Metropolitan Magistrate, Bengaluru and therefore the learned Magistrate had no jurisdiction to take fresh cognizance of the offence which was committed in the year 2008 in respect of which complaint was already filed by the complainant in PCR No.12455/2018. Secondly, in view of section 142A of the Act, complaint having not been pending before any court, the learned Magistrate could not have assumed jurisdiction in the matter. Further, learned counsel submits that the endorsement given by the court of Judicial Magistrate, I Class, Tirur in CMP No.4387/2015 indicates that the only application filed by him for condonation of delay has been taken back by the complainant and not the original complaint, as a result, the original complaint in PCR No.12455/2008 is still pending consideration of JMFC, Tirur.
6. Learned counsel for the respondent/ complainant, however, disputes the above submissions and referring to the very same order relied on by the learned counsel for the petitioner in CMP No.4387/2015, submits that while returning the said application, main CMP No.4386/2015 was also returned to the complainant on 29.09.2015. But, since there was no clarity with regard to procedure to be followed for re-presentation of the complaint in terms of the order passed by the Hon’ble Supreme Court in DASHRATH’s case supra, on the advise of learned counsel for the complainant, a fresh petition was presented before the XVI Additional Chief Metropolitan Magistrate, Bengaluru. He submits that the said complaint was filed on the same cause of action on the very same averment. It was not a new complaint. In the said circumstances, if for any reason, learned Magistrate has taken fresh cognizance of the alleged offence, the same may only amount to irregularity and does not amount to illegality, vitiating the proceedings initiated against petitioner.
7. I have considered the above submissions and perused the records. It is not in dispute that respondent/complainant initiated action against petitioner under section 138 of the Act, for dishonour of cheque issued by the petitioner. The original complaint filed by him in PCR No.12455/2008 was stayed insofar as present petitioner is concerned by orders of this court in Criminal Petition No.5809/2013. The said stay order is still in operation. Therefore, in view of this stay, no further order could have been passed by the learned Magistrate in PCR No.12455/2008 when the matter was seized by this Court.
8. Learned counsel for respondent submits that stay order issued by this court in Criminal Petition No.5809/2013 was not communicated to the trial Court, as a result, original complaint came to be returned pursuant to the order of the Hon’ble Supreme Court in DASHRATH’s case supra.
9. Even if it is accepted that the stay granted by this Court was not communicated to the lower court, yet the fact remains that the petitioner was aware of the stay of the proceedings before the trial Court. Needless to say, in view of the stay granted by this court, complaint lodged by the respondent under section 138 of the Act is deemed to have been pending. In the said circumstances, the said complaint could not have been transferred to any other Court without the orders of this Court. Since the learned Magistrate has directed return of the complaint during the operation of stay granted by this Court, the said order transferring the complaint as well as the subsequent orders passed by the learned Magistrate and the order taking fresh cognizance of the alleged offence cannot be sustained.
10. The averments made in the complaint clearly indicate that the complainant has sought prosecution of the petitioner on the same cause of action which was seized by the XVI Additional Chief Metropolitan Magistrate at Bengaluru. In terms of the provisions of Section 142A of the NI Act, the very same Court derived jurisdiction to try the offence. Therefore, the complaint in question is directed to be transferred to the Court of competent jurisdiction, namely, XVI Additional Chief Metropolitan Magistrate, Bengaluru, for trial in accordance with law. In view of this order, application for condonation of delay does not survive for consideration and the same stands dismissed.
Petition stands disposed of in terms of the above order.
Sd/- JUDGE AN/-