Allowed

Sri Azgar Ali v. M/S Metcoimpex

Karnataka HC5 Jul 2021CRL.P/4687/2016

Case brief

AI extract

What is this about?

This criminal petition sought quashing of proceedings against the petitioner for an offence under Section 138 of the Negotiable Instruments Act. The High Court held that since the petitioner was neither the drawer nor signatory to the disputed cheque, the proceedings against him amounted to an abuse of the process of the Court and were quashed.

What did the court decide?

The proceedings against the petitioner in C.C.No.7609/2012 are hereby quashed.

Sri Azgar Ali Vs M/S Metcoimpex — Cheque Dishonour | Karnataka HC (2021)

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Crl.P.No.4687/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JULY 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.4687/2016

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BETWEEN :

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SRI.AZGAR ALI S/O MR.ALLABAKASH AGED ABOUT 35 YEARS RESIDING AT GANESH NAGAR KOLIMIHATTI KANNAHOSAHALLI KUDILIGI TALUK BELLARY DISTRICT – 583 135 … PETITIONER

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(BY DR.SRI.NANDA KISHORE, ADV.)

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AND :

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M/S.METCOIMPEX NO.B3, GF, OM SHAKTI BHAVAN 2^ND MAIN, 7^TH CROSS, BAHUBALLI NAGAR JALAHALLI POST, BANGALORE – 560 013 REPRESENTED BY ITS PROPRIETOR SRI.JEEVAPRAKASH

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MR.AHMED BAKASH S/O MR.ALLABAKASH AGED ABOUT 40 YEARS PROPRIETOR BNA ENTERPRISES HOLALKERI ROAD CHITRADURGA – 577 501 … RESPONDENTS

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(R1 IS SERVED NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 14.06.2021)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE CRIMINAL

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Crl.P.No.4687/2016

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PROCEEDINGS IN C.C.NO.7609/2012 (PCR NO.27605/2011) PENDING BEFORE THE XXVII A.C.M.M., BANGALORE, IN SO FAR AS THE PETITIONER IS CONCERNED VIDE ANNEXURE – A.

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THIS CRIMINAL PETITION COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings against the petitioner in C.C.No.7609/2012 (PCR No.27605/2011) on the file of XXVII ACMM, Bengaluru amount to abuse of the process of the Court?” is the question involved in this case.

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The first respondent filed complaint before the trial Court as per Annexure-B to prosecute the petitioner and the second respondent for the offences punishable under Section 138 of Negotiable Instruments Act, 1881. In the said complaint the petitioner is arrayed as accused No.2 and the second respondent is arrayed as accused No.1. For the purpose of convenience the parties will be referred to henceforth as per their ranks before the trial Court.

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It was alleged in the complaint that accused No.1 entered into a memorandum of agreement as per

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Crl.P.No.4687/2016

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Annexure-C with the complainant for a consideration of Rs.25,00,000/-. The petitioner was allegedly a witness to the memorandum of agreement.

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It was further alleged that towards

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discharge of liability under the said memorandum of agreement, accused No.1 issued following cheques as per Annexures-D to H drawn on his account:

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Cheque number	Amount	Date
013459	5,00,000/-	01.07.2011
013458	5,00,000/-	01.07.2011
013462	4,00,000/-	02.07.2011
013461	6,00,000/-	02.07.2011
013460	5,00,000/-	02.07.2011

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When the said cheques were presented,

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they were dishonoured for want of sufficient funds. The complainant issued notice to accused Nos.1 and 2 as per Annexure-P calling upon them to pay the cheque amount or to face the prosecution. Since the amount was not paid, the complainant filed the complaint as per Annexure-B.

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Crl.P.No.4687/2016

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The learned Magistrate on taking cognizance registered the same in C.C.No.7609/2012 and summoned both the accused to take up the trial.

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The petitioner/accused No.2 seeks quashing of the aforesaid proceedings on the ground that he is neither the drawer of the cheques nor signatory to the cheques, therefore, the Trial Court was not justified in taking cognizance of the offence against him.

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Neither in the complaint nor in the notice it is alleged that accused No.2 drew the cheques in question. The copies of the cheques produced also show that they were drawn by accused No.1-Ahamed Baksh on his account. The complainant despite service of notice has not turned up to deny the contention that cheques were not drawn by him on his account.

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Section 138 of NI Act permits to prosecute

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only the drawer of the cheque. The language of Section 138 of the Negotiable Instruments Act makes it clear that only the drawer of the cheque is liable for

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Crl.P.No.4687/2016

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prosecution for the offence under the said Section. Admittedly, accused No.2 was neither the drawer of the Cheque nor the cheques pertain to his account. Therefore, apparently he is not liable for the prosecution for the offence under Section 138 of the Negotiable Instruments Act.

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Even if the impugned proceedings were to continue against accused No.2, there is no chance of his conviction. Therefore, such proceedings against accused No.2 amount to abuse of the process of the Court. The petition is allowed.

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The proceedings against the petitioner in C.C.No.7609/2012 (PCR No.27605/2011) on the file of the 27^th ACMM, Bengaluru are hereby quashed.

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Sd/JUDGE

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akc

Sri Azgar Ali v. M/S Metcoimpex

Case brief

What is this about?

What did the court decide?

Sri Azgar Ali v. M/S Metcoimpex

Case brief

What is this about?

What did the court decide?

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