Dismissed

Smt. Chandrika Raj T v. Mr.E.Mohan Rao

Karnataka HC22 Mar 2021CRL.P/6381/2020

Case brief

AI extract

What is this about?

A criminal petition under Section 482 Cr.P.C. sought to quash proceedings against a wife who did not sign the bounced cheque, arguing she was not the drawer. The Court distinguished a Supreme Court precedent and dismissed the petition, noting the notice reply admitted joint liability for the loan, making it a question of trial.

What did the court decide?

The criminal petition praying for quashment of the proceedings against Petitioner No.1 was rejected and the petition was dismissed.

Smt. Chandrika Raj T Vs Mr.E.Mohan Rao — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION NO.6381/2020

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BETWEEN:

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SMT. CHANDRIKA RAJ T, AGED ABOUT 35 YEARS, W/O SATHISH KANNAN.

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SRI SATHISH KANNAN, AGE ABOUT 40 YEARS , H/O CHANDRIKA RAJ T.

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BOTH ARE RESIDING AT NO.634, 3^RD MAIN ROAD, BHARATH HOUSING SOCIETY, PATALAMMA TEMPLE BACK SIDE, UTTARAHALLI, BENGALURU – 560061. … PETITIONERS

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(BY SRI NAGARAJ A.C., ADVOCATE)

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AND:

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MR. E. MOHAN RAO, S/O ETHIRAJALU NAIDU, AGED ABOUT 54 YEARS, RESIDING AT NO.156, C AND D BEML LAYOUT, SEVENTH STAGE, 1^ST PHASE, MYLSANDRA, BENGALURU – 560059. … RESPONDENT

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(BY SRI VIJAY KUMAR, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 27.02.2019 PASSED BY HON'BLE XVI ACMM AT BENGALURU IN PCR NO.2420/2019 (IN C.C.NO.5307/2019) AS PER ANNEXURE-A AGAINST THE FIRST PETITIONER HEREIN.

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

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O R D E R

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This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the order dated 27.02.2019 passed by the Hon'ble XVI ACMM, Bengaluru in PCR No.2520/2019 subsequently numbered as C.C.No.5307/2019 as against petitioner No.1 and grant such other relief as deems fit in the circumstances of the case.

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The factual matrix of the case is that the respondent has filed a private complaint under Section 200 of Cr.P.C. invoking the offence under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short) making the allegation against the petitioners herein that both of them had approached the respondent and availed an amount of Rs.6,00,000/- and agreed to pay the interest periodically and subsequently issued the cheque and the same was bounced. Hence, private complaint was filed. The learned Magistrate recorded the statement of

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P.W.1 and also marked the documents Exs.P.1 to 13 and on perusal of the original complaint and the documents produced along with the complaint and the sworn statement of the complainant, satisfied that the complainant has made out prima facie case to proceed against the accused for the offence under Section 138 of the NI Act and cognizance was taken and issued process against the petitioners herein.

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The learned counsel for the petitioners would vehemently contend that the cheque is issued by petitioner No.2 and petitioner No.1 has not signed the cheque. Hence, the issuance of process against petitioner No.1 is bad in law. The learned counsel would contend that when petitioner No.1 has not signed the cheque, there cannot be any 138 proceedings against petitioner No.1 and hence it requires interference of this Court.

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Per contra, the learned counsel for the respondent would vehemently contend that before filing of the case, notice was issued and both the petitioners herein have given the reply admitting that an amount of Rs.2,00,000/- is payable and disputed the entire cheque amount. When the petitioners have admitted the liability in the reply notice, there cannot be any

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quashing of the proceedings against petitioner No.1. The learned counsel would contend that in the complaint, specific averments are made against the petitioners herein that both of them had approached the complainant and requested the complainant to advance the said amount and accordingly both of them have received the amount and they have committed default in payment of the said amount and notice was also issued and reply was given. The cause of action was arisen against petitioner Nos.1 and 2 and now they cannot contend that there cannot be any proceedings against petitioner No.1 herein. The learned counsel would contend that when specific allegations are made in the complaint and in the reply when both of them have admitted the liability and issuance of cheque, it is a matter of trial. Now the case is set down for cross-examination of P.W.1. When the matter is set down for cross-examination of P.W.1, the petitioners have approached this Court. Hence, the same has to be dismissed.

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In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioners relied upon the judgment of the Apex Court in the case of MRS.

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APARNA A. SHAH v. M/S. SHETH DEVELOPERS PVT. LTD.

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AND ANOTHER reported in 2013 AIR SCW 4161 , wherein it is

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held that drawer of cheque alone can be prosecuted. The cheque issued by husband of appellant from their joint account, the appellant is not a drawer of cheque as she has not signed the same. Criminal proceedings against the appellant quashed.

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The learned counsel also relied upon the unreported judgment of this Court passed in Crl.P.No.8157/2014 dated 13.01.2015, wherein this Court held that the petitioner cannot prosecute the respondent for an offence punishable under Section 138 of the NI Act for dishonour of cheque alleged to have been issued by her husband. There are no reasons to interfere with the impugned order.

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Having heard the learned counsel for the petitioners and the learned counsel for the respondent and also on perusal of the complaint, specific allegation is made against the petitioners herein that they were in financial constraints and both of them have requested the complainant for advancing of Rs.6,00,000/- to meet their urgent business requirements. The petitioners herein have made an express promise and assurance to the complainant that the above said loan amount would be

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returned within a period of three months and also voluntarily agreed to pay the interest at the rate of 1.5% per month. It is also an allegation that the petitioners voluntarily deposited the interest amount in the complainant’s bank account for few months and thereafter they have not made the payment and on request they have issued the cheque and the same was dishonoured. On perusal of the complaint, a specific allegation is made against the petitioners that they had approached the complainant and took the amount of Rs.6,00,000/- and paid the interest. The main contention of the learned counsel for the petitioners before this Court is that the cheque is issued only by the husband and not by petitioner No.1. Hence, there cannot be any proceedings against petitioner No.1 herein.

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The learned counsel for the respondent mainly relies upon the reply notice given by the petitioners herein. When the notice was issued against both the petitioners and when they have given joint reply and in their reply they have categorically admitted that they are liable to pay an amount of Rs.2,00,000/and not Rs.6,00,000/- as claimed in the notice. When the specific allegations are made in the complaint and also in the notice issued against the petitioners and in paragraph No.8 of

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the reply notice, both of them have admitted the liability to the extent of Rs.2,00,000/- and not Rs.6,00,000/-. When the specific averment is made in the reply notice admitting the liability by both the petitioners and though they are husband and wife, the very contention of the petitioners that the cheque has been issued only by respondent No.2 i.e., husband and there cannot be any criminal proceedings against petitioner No.1 cannot be accepted.

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The factual matrix of the case has to be looked into

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and also the principles laid down by the Apex Court in the judgment in the case of Mrs. Aparna A. Shah (supra) and this Court has to distinguish the principles laid down in the judgment. In the case on hand, there is an admission on the part of the petitioners in the reply notice that they were liable to pay only an amount of Rs.2,00,000/-. Whether they are liable to pay an amount of Rs.2,00,000/- or Rs.6,00,000/- is a matter of trial and the same has to be considered after considering the material available on record after conducting the trial. Hence, I do not find any merit in the case to quash the proceedings initiated against the petitioners herein and the principles laid down by the

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Apex Court in the judgment in the case of Mrs. Aparna A. Shah (supra), is not applicable to the facts of the case in view of the specific admission made by both the petitioners in the reply notice and specific averments made in the complaint that both of them availed the amount and agreed to repay.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The petition is rejected.

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Sd/JUDGE

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Smt. Chandrika Raj T v. Mr.E.Mohan Rao

Case brief

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Smt. Chandrika Raj T v. Mr.E.Mohan Rao

Case brief

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