IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2808/2016 BETWEEN:
Narayan, S/o. late Kannan, Aged about 60 years, R/at No.36, 2nd Cross, 3rd Main, V.N. Halli, R.T. Nagar Post, Bengaluru – 560 032. …Petitioner (By Sri. Ganesh Kumar R., Advocate) AND:
Sri. T.S. Nagesh, Aged about 45 years, S/o. Shanker, R/at Flat No.F1001, ETA Garden Apartment, Binny Mill, Bengaluru – 560 023. … Respondent (Respondent served and unrepresented ) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C. No.2122/2014 pending on the file of XVI A.C.M.M., Bengaluru as against this petitioner as being without any authority of law.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner. Respondent is served and unrepresented. Perused the records.
2. Petitioner has called in question the legality of the case registered against him in C.C.No.2122/2014 for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’, for short).
3. The contention of the learned counsel for the petitioner/accused No.1 is that he is neither a drawer nor the holder in due course of the cheque in question. According to the complainant, cheque in question was issued by accused No.2 at the instance of accused No.1. The same does not render the petitioner/accused No.1 liable for dishonour of the alleged cheque. Hence, prosecution of the petitioner/accused No.1 is bad in law and liable to the quashed.
4. The averments made in the complaint clearly go to show that at the instance of petitioner/accused No.1, accused No.2 being the son of petitioner/accused No.1 issued a cheque bearing number 014054 for a sum of Rs.2,50,000/- dated 24.06.2013 towards repayment of the amount borrowed by petitioner/accused No.1. There is no dispute as to the fact that accused No.2 was the drawer of the said cheque and the cheque in question came to be dishonoured for insufficiency of the fund. As per the provisions of Section 138 of NI Act, the drawer of the cheque is primarily liable for the consequences of the said cheque. Merely because, the cheque in question was issued at the instance of accused No.1 towards discharge of the liability due and payable by accused No.1, it does not render him liable for dishonour of the said cheque. Therefore, prosecution of the petitioner being contrary to Section 131 of NI Act, petition deserves to be allowed.
Consequently, petition is allowed. Proceedings in C.C.No.2122/2014 pending on the file of XVI Addl. Chief Metropolitan Magistrate, Bengaluru, is quashed only insofar as the petitioner/accused No.1 is concerned.
Sd/- JUDGE SV