IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF APRIL 2019 BEFORE THE HON' BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.1314 OF 2019 BETWEEN:
Smt.Srimathi Srinivasan, Aged about 69 years, W/o Sri.Srinivasa Iyengar, No.37, Galaxy Enclave, Jakkur Plantation Road, Jakkur, Yelhanka, Bangalore-560 054.
(By Smt.C.S.Radha Jayanthi, Advocate for Sri.Bayya Reddy.N, Advocate) …Petitioner AND:
Shri.K.R.Kannan, Aged about 59 years, S/o Sri.Raghunathan, Having office at No.215, III Main, Vth Cross, Geology Lay-out, Bangaloe-560 056.
…Respondent This Criminal Petition is filed under Section 482 of Code of Criminal Procedure praying to quash the order dated 06.02.2019 on the file of XXII Addl.C.M.M, Bengaluru in P.C.R.No.1408/2019 (C.C.No.3641/2019) taking cognizance of the offence and issue of process to the petitioner and also direct payment of cost by the respondent.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER Heard Smt.C.S.Radha Jayanthi, learned counsel appearing on behalf of Sri.Bayya Reddy, for petitioner and perused the records.
2. Petitioner who is facing the prosecution ignited by the respondent by filing a complaint under Section 200 of Cr.P.C alleging that cheques issued by petitioner for repayment of loan, when presented to the Bank has been returned unpaid and thereby, she has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (herein referred to as ‘N.I.Act’ for short) is before this Court for quashing of said proceedings.
3. Contentions raised by Smt.C.S.Radha Jayanthi, learned counsel appearing for the petitioner are two fold;
a) In respect of loan borrowed and thereby cheque having been dishonored for its repayment, complaint is not maintainable.
b) In respect of time barred debt, proceedings initiated against petitioner under Section 138 of Negotiable Instruments Act, 1881 would not be maintainable.
In support of her contention, she has relied upon following judgments:
a) K.R.Indira V/s. Dr.G.Adinarayana reported in AIR 2003 SC 4689;
b) Jagadamba parisar Sahakari V/s.Shravan Ajinath Ukirde reported in LAWs (BOM) 2006 9 101.
4. Having heard the learned counsel appearing for petitioner and on perusal of records in general and complaint in particular it would disclose that complainant-respondent herein has specifically alleged that he had lent a sum of Rs.1,00,00,000/-to the petitioner by issuing four cheques of Rs.25,00,000/- each and same had been encashed by petitioner and she having been agreed to repay the same, after persistent demands, agreed to repay the loan amount and as such had issued four cheques which on presentation of same, had been returned unpaid with an endorsement “Insufficient Funds”. It is also alleged by the complainant that statutory notice issued under Section 138 of N.I.Act, has been received by petitioner and demand made therein has not been complied with and thereby, petitioner-accused has committed an offence punishable under Section 138 of N.I.Act.
5. In so far as first contention raised by the learned counsel appearing for petitioner by relying upon the judgment of the Hon’ble Apex Court herein referred supra, is perused by this Court. Same would disclose that after a full fledged trial, a conclusion was arrived at by learned trial Judge that if complainants failed to prove that the cheques were issued for repayment of the loans advanced by the complainants or in other words, trial Court accepted the contentions of the accused that blank cheques given by him in good faith were misused. Further in appeal the accused was found guilty for the offences punishable under Section 138 of N.I. Act, in so far as Crl.A.No.272/1996 concerned and other two appeals namely, Crl.A.Nos. 270/1996 and 271/1996 were dismissed. The Hon’ble Apex Court noticed, though the complainant had claimed for repayment of the loan, cheques in question therein had been issued but on facts, it was found that the amount of loan indicated in the notice as well as cheque amounts were different. And as such, Hon’ble Apex court has come to a conclusion that on facts obtained in the said case not only cheque amounts were different from the alleged loan amounts but demand was made relatable to the cheque amount and it was depicted by the complainant as though it is a demand for the loan amount which was not relating to amount reflected in the disputed cheques.
6. In the instant case, at paragraph-7 of the complaint, it is specifically alleged by the complainant that a demand was made in the legal notice dated 21.12.2018 in respect of non encashed cheques as morefully described therein. As such, the ratio laid down by the Hon’ble Apex Court would not be attracted to the facts and circumstances of the instant case and that apart, in the said case it was after a full fledged trial conclusion came to be arrived at by the learned trial Judge and not at the threshold. This opinion expressed by the court is for the limited purpose for considering the prayer and quashing of the proceedings. However, it is made clear that trial Court should not be influenced by the observations made hereinabove while adjudicating the complaint in question on merits.
7. Second contention which relates to the question of legally enforceable debt or illegal debt same has to be considered after trial and the allegations made in the complaint would suffice to arrive at conclusion that cheques in question having been issued by the accused for repayment of loan. As to whether it was a legally enforceable debt or otherwise, will have to be adjudicated by the learned jurisdictional Magistrate after conclusion of trial. As such, second contention also deserves to be rejected and accordingly, it is rejected. Consequently, petition fails and it is rejected.
In view of disposal of main petition, IA.No.1/2019 for stay does not survive for consideration and accordingly, it is disposed of.
SD/- JUDGE SB