IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.400/2016 BETWEEN:
SMT. UMA PRASAD W/O SRI N SHIVAPRASAD AGED ABOUT 47 YEARS R/AT NO.415 6TH A MAIN ROAD, 3RD BLOCK HRBR LAYOUT BENGALURU-560 043.
…PETITIONER (BY SRI MANJUNATH PRASAD H. N., ADVOCATE) AND:
MISS A.S. NAMETHA S/O SRI SOMANNA AGEDA BOUT 32 YEARS R/AT NO.78, SUBANNA GARDEN BEHIND BTS DEPOT VIJAYANAGAR, GKW ROAD BENGALURU-560 040 REPRESENTED BY HER SPECIAL POWER OF ATTORNEY HOLDER SMT. R K SARASWATHI W/O SRI H V KRISHNASWAMY AGED ABOUT 56 YEARS R/AT NO.1062, 7TH A MAIN ROAD III BLOCK, JAKKANSANDRA INDUSTRIAL LAYOUT, KORMANGALA BENGALURU-560 034.
(BY SRI V. KRISHNA MURTHY, ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.54488/2015 PENDING ON THE FILE OF XIV ADDL.C.M.M., MAYOHALL UNIT AT BENGALURU, VIDE ANNEXURE-A, IN SO FAR AS IT RELATES TO THE PETITIONER ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed under Section 482 of Cr.P.C. seeking to quash the entire proceedings in C.C.No.54488/2015 pending on the file of 14th Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, insofar as it relates to the petitioner only.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. Respondent initiated action against the petitioner and her husband for the dishonour of the cheque dated 10.03.2015 bearing No.000380 drawn on Standard Chartered Bank, M.G.Road, Bengaluru.
4. Learned counsel for the petitioner at the outset would submit that the petitioner herein is not the signatory to the said cheque. Even though in the complaint it is alleged that the accused have availed the loan, there is no material to substantiate the said allegations. In support of his argument, he has placed reliance on the decision of this Court in the case of Smt. Rasheeda Mehaboob Vs. Replicon Software (India) Private Limited represented by its Manager reported in ILR 2011 KAR 2475, to contend that by virtue of Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the N.I.Act’), the petitioner herein not being the drawer of the cheque, prosecution of the petitioner for the alleged offence is illegal and an abuse of the process of the Court, hence, liable to be quashed in exercise of the powers under Section 482 of Cr.P.C.
5. Refuting the aforesaid contentions, learned counsel for the respondent would submit that right from inception, specific averments were made in the legal notice as well as in the complaint that both the accused persons namely, the petitioner and her husband jointly availed the loan of Rs.47,00,000/- from the complainant and in repayment thereto, issued the cheque in question. The account in respect of which the cheque in question was issued stood in the joint names of the petitioner and her husband. Therefore, the petitioner as well as her husband have committed the offence punishable under Section 138 of N.I.Act. Hence, the complaint against both the accused is maintainable and there is no reason for quashing the proceedings.
6. I have considered the submission and have perused the records.
7. The copy of the cheque is produced by the petitioner at Annexure ‘C’ which indicate that the account in respect of which the said cheque in question is issued stands in the joint name of the petitioner and her husband. But, the said cheque is signed only by the husband of the petitioner who is arraigned as accused No.1 in the above proceedings. Section 138 of N.I.Act in unambiguous terms renders the drawer of the cheque answerable to the charges under the said Section 138 of N.I.Act.
8. This legal position is expounded by the Court in the decision cited by the learned counsel for the petitioner in paragraph Nos.9 and 10, wherein, relying on the decision of the Hon’ble Supreme Court of India, it is held thus:
“9. It is clear from the aforesaid provisions of law that it is only a person who has drawn the cheques, who is deemed to have committed an offence under Section 138 of N.I.Act, if the cheque drawn by the said person is returned from the Bank with an endorsement ‘insufficient funds’. It is not possible to read from the contents of the aforesaid Section that even a person who is not the drawer of the cheque also can be made liable in respect of an offence under Section 138 of N.I.Act. This position being clear from the bare perusal of the aforesaid provision of law, and it is also necessary to refer to the law laid down by the Apex Court in this regard.
10. In the case of P.J.AGRO TECH.LTD. & OTHERS VS. WATER BASE LTD.(2010 AIR SCW 4616), the Apex Court while considering the case where on facts, it was found that the cheque in question which has been dishonoured was issued by respondent No.11 for discharging the dues of the Appellant No.1’s company and its Directors to the 1st respondent – Company, it is in the context of the said facts, the Apex Court after referring to Section 138 of N.I.Act, laid down the following preposition of law;
“An action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. The proceedings in such matters are in personam and cannot be used to foist an offence on some other person, who under the statute was not liable for the commission of such offence”.
9. In view of this legal and factual position, it needs to be held that the prosecution of the petitioner for the alleged offence is blatantly illegal and an abuse of process of Court. In this context, it is also relevant to note that though the allegations were made in the legal notice and in the complaint that the petitioner and her husband have jointly borrowed the loan, the complaint does not refer to any prima facie material in this regard and nothing is produced along with the complaint prima facie to show that both the accused have borrowed loan. The respondent appears to have implicated the petitioner in the alleged offence solely on the ground that the cheque in question was issued from the account jointly maintained by the petitioner and her husband. But in view of the above proposition of law, the impugned proceedings cannot be allowed to continue against the petitioner.
10. Accordingly, the criminal petition is allowed.
The entire proceedings in C.C.No.54488/2015 pending on the file of the XIV Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru, is quashed only insofar as the petitioner herein is concerned. Proceedings shall continue against the husband of the petitioner who is arraigned as accused No.1 therein.
11. It is made clear that the observations made in this order shall not influence the trial Court while considering the contentions of the respective parties before it.
Ordered accordingly.
Sd/- JUDGE nvj