IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.2754 OF 2019 BETWEEN:
1. M/S. VAHE PROJECTS PVT. LTD., REPRESENTED BY ITS DIRECTOR S. SUDHAKAR HAVING REGISTERED OFFICE AT SY. NO. 29/1, 3RD CROSS NARAYANAPPA LAYOUT BEHIND VARTHUR HIGH SCHOOL VARTHUR, BENGALURU-560 087 2. S. SUDHAKAR S/O SUNLINGAM AGED ABOUT 40 YEARS R/AT SY. NO. 29/1, 3RD CROSS NARAYANAPPA LAYOUT BEHIND VARTHUR HIGH SCHOOL VARTHUR, BENGALURU-560 087 … PETITIONERS (BY SHRI. PARASHURAM R HATTARAKIHAL, ADVOCATE) AND:
G.N. GAJENDRA KUMAR S/O NAGARAJ AGED ABOUT 39 YEARS R/AT GUNJURU VILLAGE BENGALURU EAST TALUK BENGALURU-560 087 ... RESPONDENT (BY SHRI. G.B. MANJUNATH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3926/2018 U/S 138 OF N.I ACT BY THE COMPLAINANT ON THE FILE OF THE II A.C.J.M., BANGALORE RURAL DISTRICT, BANGALORE THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners are accused in proceedings initiated against them under Section 138 of Negotiable Instruments Act, 1881 (“N.I.Act” for short), pursuant to dishonour of cheque bearing No.929337 dated 19.05.2017 for a sum of Rs.6,16,83,134/-. Complainant presented a private complaint in PCR No.608/2017. Criminal proceedings are pending on the file of Chief Metropolitan Magistrate, Bengaluru, in C.C.No.3926/2018 against the accused.
2. It is stated at the Bar by the learned advocates for petitioners and respondent that examination-in-chief has been completed and the matter is now set down for cross-examination. Petitioners have challenged the criminal proceedings at this stage.
3. Shri Parashuram R. Hattarakihal, learned advocate for petitioners urged the following grounds;
that as per communication dated 30.03.2019, petitioner’s banker namely, State Bank of India was informed to stop the payment in respect of cheques bearing No. 929322 & 929337. The banker has also certified that no other transactions in respect of the said cheques were available as per their records till the date of the said communication;
that respondent has not complied with Section 138(a) of the N.I.Act where under he was required to present the cheque within the period of validity of the cheque; and that as per the circular issued by the Reserve Bank of India, information of dishonour of cheque valued Rs. One Crore and above should be made part of Bank MIS and concerned branch should report to the concerned office/Head Office. No such report has been made informing the dishonour of the cheque in question which is more than Rs. One Crore.
Based on the above grounds, learned advocate for the petitioner submitted that entire proceedings initiated against the petitioner amount to abuse of process of law and prayed for quashing of the proceedings.
4. Shri G.B.Manjunath, learned advocate for the respondent submitted that as per Annexure-R3 annexed to the statement of objections filed by the respondent, cheque in question has been dishonoured for “funds insufficient”. He further submitted that the complainant has categorically averred in the complaint that the cheque was dishonoured for “funds insufficient”. He further submitted that the matter is now set down for cross-examination. There is variance in versions pleaded by the parties with regard to dishonour of cheques and it can be decided only after trial. Accordingly, he prayed for dismissal of the petition.
5. I have carefully considered rival contentions and perused the records.
6. The principal argument of the petitioners is that the cheque in question was not presented to the banker. In respect of his contention, he has placed reliance on Annexure-E, communication dated 30.03.2019, said to have been issued by the Branch Manager of State Bank of India, Ramagundanahalli Branch, Bengaluru. Accordingly, it is contended that when the cheque was not presented for encashment, Section 138(a) of N.I.Act is not complied with. Consequently, there can be no dishonour of the cheque in question.
7. It is complainant’s case that the cheque in question was dishonoured as per Annexure-R3. Therefore, there is variance in the versions urged on behalf of the petitioners and the complainant. Both depend upon documents in their support. Petitioners have placed reliance on Annexure-E, communication dated 30.03.2019 and complainant on Annexure-R3. It is not in dispute that trial is in progress and complainant’s examination-in-chief has been recorded. The dispute is with regard to the presentation of the cheque, which is a matter of fact. It can be decided only after trial. In the circumstances, this petition must fail and it is accordingly dismissed.
8. In view of the dismissal of the petition, I.A.No.2/2019 does not survive for consideration and the same stands disposed of.
No costs.
Sd/- JUDGE AV