Dismissed

Yaseen S/O Dastagir Malidwale v. Azizkhan S/O Lazam Tajoddin

Karnataka HC19 Nov 2019CRL.P/100887/2019

Case brief

AI extract

What is this about?

Petitioner sought to quash proceedings under Section 138 NI Act, claiming cheques were issued as security for future sales and had no debt. Court rejected quashing as this goes to the root of the matter for trial, dismissing the petitions.

What did the court decide?

Petitions seeking quashing of proceedings under Section 138 of the Negotiable Instruments Act were dismissed.

Yaseen S/O Dastagir Malidwale Vs Azizkhan S/O Lazam… — Cheque Dishonour | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^{T H} DAY OF NOVEMBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE P.G.M.PATIL

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CRIMINAL PETITION NO.100887/2019 C/W. CRIMINAL PETITION NO.100888/2019

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IN CRL.P.NO.100887/2019

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BETWEEN:

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YASEEN S/O DASTAGIR MALIDWALE AGE: 42 YEARS, OCC: BUSINESS, R/O: MIRAJ(NEAR KAMAN VES, GANAPATI TALAV), TAL: MIRAJ, DIST: SANGLI, STATE: MAHARASHTRA.

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... PETITIONER

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(BY SRI B S SANGATI, ADVOCATE.)

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AND:

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AZIZKHAN S/O. LAZAM TAJODDIN AGE: 68 YEARS, OCC: AGRICULTURIST, R/O: KUDACHI, TQ: RAIBAG, DIST: BELAGAVI.

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... RESPONDENT

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(BY SRI SHRIHARSH A NEELOPANT, ADVOCATE.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO ALLOW THE CRIMINAL PETITION FILED UNDER SECTION 482 OF CR.P.C. AND QUASH PRIVATE COMPLAINT (P.C.NO.75/2018) AND TAKING COGNIZANCE AND ISSUANCE OF SUMMONS AGAINST THE PETITIONER HEREIN AND SUBSEQUENT PROCEEDINGS PENDING ON THE FILE OF THE COURT OF THE ADDL. CIVIL JUDGE & JMFC, RAIBAG, IN C.C.NO.882/2018 (P.C.NO.75/2018) FOR AN OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT 1881, ETC.,.

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IN CRL.P.NO.100888/2019

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BETWEEN:

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YASEEN S/O DASTAGIR MALIDWALE AGE: 42 YEARS, OCC: BUSINESS, R/O: MIRAJ(NEAR KAMAN VES, GANAPATI TALAV), TQ: MIRAJ, DIST: SANGLI, STATE: MAHARASHTRA.

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... PETITIONER

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(BY SRI B S SANGATI, ADVOCATE.)

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AND:

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AZIZKHAN S/O LAZAM TAJODDIN AGE: 68 YEARS, OCC: AGRICULTURIST, R/O: KUDACHI, TQ: RAIBAG, DIST: BELAGAVI.

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... RESPONDENT

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(BY SRI SHRIHARSH A NEELOPANT, ADVOCATE.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO ALLOW THE CRIMINAL PETITION FILED UNDER SECTION 482 OF CR.P.C. AND QUASH PRIVATE COMPLAINT (P.C. NO.50/2018) AND TAKING COGNIZANCE AND ISSUANCE OF SUMMONS AGAINST THE PETITIONER HEREIN AND SUBSEQUENT PROCEEDINGS PENDING ON THE FILE OF THE COURT OF THE ADDL. CIVIL JUDGE & JMFC, RAIBAG, IN C.C.NO.514/2018 (P.C.NO.50/2018) FOR AN OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT 1881, ETC.,.

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THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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These two petitions are filed under section 482 of Cr.P.C., seeking to quash the proceedings initiated on private complaints in P.C.No.75/2018 and P.C.No.50/2018, now pending in C.C.No.882/2018 and C.C.No.514/2018,

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respectively, on the file of Addl. Civil Judge and JMFC, Raibag, for the offence punishable under section 138 of the Negotiable Instruments Act, 1881.

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The brief facts of the case are that, the petitioner is dealing in Soya Processing Project

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and proprietor of Info Real Solution. A memo of understanding was executed between the petitioner and the respondent for the supply of soya for a period of two years. It is further stated that due to the death of the son of respondent, the project was stopped. However, the petitioner in order to assist the respondent, agreed to solve the problems and took possession of machineries by issuing four cheques as security for resale of machineries and subsequently it was specifically agreed that the cheques have to be deposited after the sale of the machineries. The petitioner has further stated that the respondent presented the said cheques which were dishonoured as ‘insufficient funds’. Thereafter respondent issued notice to the petitioner which he replied. Subsequently the respondent filed the private complaint before the learned Magistrate. The Court after taking cognizance of the alleged offence under section 138 of the Negotiated

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Instruments Act has proceeded to register the case and issued summons to the petitioner. The petitioner has sought for quashing the initiation of the proceedings on the basis of the dishonour of cheque as there is no legally recoverable debt.

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Heard the learned counsel for the

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petitioner and the respondent.

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The learned counsel for the petitioner submitted that the cheque in question was issued

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as security for the payment of the amount after the sale of machineries, the possession of which he had taken and it is further submitted that the respondent should not have presented the said cheques before the sale of machineries and therefore presentation of the cheque and filing the complaint consequent to dishonour of cheques is abuse of process of law.

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Per contra, the learned counsel for the respondent submitted that absolutely there are no grounds to quash the proceedings which are initiated as per the provisions of the Negotiable Instruments Act and whether the chqeus were issued for discharge of legally recoverable debt or not is a matter of trial before the trial Court. If the grounds urged by the petitioner are accepted, it would curtail the jurisdiction of the trial Court in exercise of its jurisdiction and pass orders in accordance with law.

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The petitioner has not disputed the issuance of cheques in favour of the respondent and it is also not disputed that when the said cheques were presented for encashment, they were returned with endorsement ‘insufficient funds’. Therefore the respondent has got issued legal notice to the petitioner and filed the private complaint before the learned Magistrate for the

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offence punishable under section 138 of the Negotiated Instruments Act.

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The trial Court after considering the

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material produced on record has taken cognizance of the alleged offence and registered the case against the petitioner herein. The grounds urged before this Court may be available to the petitioner by way of defence and on such grounds this Court cannot quash the proceedings initiated against the petitioner in exercise of its powers under section 482 of Cr.P.C. The petitioner has not made out any grounds to quash the proceedings initiated against him. Therefore the petitions are liable to be dismissed. Accordingly they are dismissed.

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Sd/JUDGE

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Mrk/-

Yaseen S/O Dastagir Malidwale v. Azizkhan S/O Lazam Tajoddin

Case brief

What is this about?

What did the court decide?

Yaseen S/O Dastagir Malidwale v. Azizkhan S/O Lazam Tajoddin

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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