Dismissed

Sri.Gajanan S/O Vasant Kokate v. State of Karnataka

Karnataka HC30 Mar 2021CRL.P/102177/2018

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. seeking to quash proceedings under Section 138 NI Act. The court held that the defence of cheque loss must be met by trial court and that Section 145 NI Act permits affidavit acceptance, requiring sworn statement only to be dispensed with, thus rejecting the plea to quash due to affidavit filing.

What did the court decide?

The petition to quash the complaint and proceedings under Section 138 NI Act is dismissed.

Sri.Gajanan S/O Vasant Kokate Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 30^th DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL.P. NO.102177 OF 2018

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BETWEEN:

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SRI. GANJANANA S/O VASANT KOKATE AGED ABOUT 36 YEARS, OCC:PRIVATE CONTRACTOR, R/O SHAVU PARK (JANGAL), BYAKOD ROAD, RAIBAG, DIST:BELAGAVI.

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…PETITIONER

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(BY SRI.RAMACHANDRA A MALI, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY BAGALKOT POLICE NOW REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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SRI. MAHADEV S/O SATYAPPA KAMBLE AGED 55 YEARS, OCC:AGRICULTURE, R/O KALLOLLI VILLAGE, TAL:JAMKHANDI, DIST:BAGALKOT, NOW R/AT NAVANAGAR, BAGALKOT.

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…RESPONDENTS

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(BY SRI. PRAVEEN K UPPAR, HCGP FOR R1) (SRI. AVINASH ANGADI, ADV. FOR R2)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING THIS HON’BLE COURT TO QUASH THE COMPLAINT AND ENTIRE PROCEEDINGS IN (PC NO.235/2017) CC NO.606/2018 AGAINST THE PETITIONER REGISTERED FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT ON THE FILE OF THE PRL. CIVIL JUDGE AND

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JMFC COURT, BAGALKOT AS THE SAME BEING TOTALLY ILLEGAL AND NOT SUSTAINABLE IN LAW.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is seeking to quash the

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complaint and entire proceedings pending in CC No.606/2018 on the file of the Principal Civil Jude and JMFC, Bagalakote, registered against him for offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ‘NI Act’).

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The primary contention of the learned

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counsel for the petitioner is that even prior to dishonour of the cheques in question, complainant has intimated the Bank regarding loss of his cheque book containing several cheque leaves including the cheques in question. It is also contended that complainant’s affidavit was filed in lieu of sworn statement and therefore, the

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procedure followed by the trial Court is not proper and hence, the entire proceedings are vitiated.

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The learned counsel for respondent No.2 would contend that the cheques issued by the accused/petitioner to the complainant in discharge of a legally enforceable debt came to be dishonoured and inspite of service of notice on the respondent, he has failed to make the payment and therefore, a complaint under Section 200 of the Cr.P.C. was filed. He contends that inspite of issuing the cheques to the complainant, the petitioner has made a false statement that the cheques were lost. He submits that the case is at the stage of recording of evidence and therefore, submits that there is no merit in this petition and accordingly, seeks to reject the petition.

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The case of the complainant is that in

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respect of a hand loan obtained by the accused to the tune of Rs.4,10,000/-, two cheques, both

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dated 02.11.2017 drawn on Union Bank of India, Raibag, were issued to him and when the said cheques were presented for encashment through his account maintained at Shri Siddarameshwara Credit Souharda Co-operative Society, Navanagar, Bagalkot, the same were dishonoured on 09.11.2017. Thereafter, a notice was issued which was received by the accused. However, he did not make any payment within the time stipulated and therefore, committed an offence punishable under Section 138 of the Negotiable Instruments Act.

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The learned counsel for petitioner relying on the intimation given to the police, vide Annexure-E has contended that on 21.04.2017 itself he has informed the police that he lost the cheque book on 18.04.2017. He has further contended that he has given intimation to the Bank on 21.04.2017 itself, that he lost the cheque

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book on 18.04.2017 pertaining to account No.576902010004293. The bank has confirmed vide letter dated 23.10.2018 that the cheque leaves in the said cheque book have been destroyed from records as requested by the customer.

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Be that as it may, the defence can take all the contentions before the trial Court regarding loss of his cheque book containing the cheque leaves in question by leading defence evidence and also producing the relevant documents. It is no doubt true that as per the intimation given to the police as well as to the Bank, the petitioner has informed that his cheque book has been lost, which is prior to filing of the complaint. However, the complainant has to be given a fair opportunity to prove his case as well as to counter the defence.

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Insofar as the second leg of argument is concerned, this Court in M/S. MESH TRANS GEARS PRIVATE LIMITED VS. DR.

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R.PARVATHREDDY reported in ILR 2014 KAR 5237 has held that the non-obstante clause in Section-145 of the “Act” dispenses the procedure contemplated in Section 200 of the Code of Criminal Procedure in respect of examination of the complainant and his witnesses on oath. Consequently, recording of sworn statement by the Magistrate in the criminal cases falling under Section 138 of the Negotiable Instruments Act may be dispensed with by accepting the affidavit of the complainant and his witnesses. As such, the said ground is also not available for the petitioner so as to quash the entire proceedings. Accordingly, the petition is dismissed.

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Pending application does not survive for

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consideration and the same is disposed of.

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Sd/JUDGE

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JTR/paragraphs 1 and 2 Jm/ paragraphs 3 till end

Sri.Gajanan S/O Vasant Kokate v. State of Karnataka

Case brief

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Sri.Gajanan S/O Vasant Kokate v. State of Karnataka

Case brief

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