Quashed

Girish S/O Gopalkrishnaprabhu Desai v. Narayan S/O Laxman Patil

Karnataka HC5 Dec 2023CRL.P/100830/2022

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition under Section 482 CrPC to set aside the trial court's order rejecting the accused's memo under Section 138 NI Act, directing the acceptance of documents necessary to rebut the presumption of legally enforceable debt, and ordered disposal within six months.

What did the court decide?

The impugned order dated 05.03.2022 is set aside. The Judicial Magistrate is directed to take on record the documents filed by the petitioner and dispose of the case within six months.

Girish S/O Gopalkrishnaprabhu Desai Vs Narayan S/O Laxman… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 100830 OF 2022

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BETWEEN:

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GIRISH S/O GOPALKRISHNAPRABHU DESAI, AGE. 53 YEARS, OCC. BUSINESS, R/O. A/2, NIRMALA HOUSING SOCIETY, MADAGAON TOWN, TALUK. SASHTI, DIST. SOUTH GOA, GOA, PIN- 403001. … PETITIONER (BY SRI. RAVIRAJ C. PATIL, ADVOCATE)

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AND:

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NARAYAN S/O LAXMAN PATIL, AGE. 68 YEARS, OCC. BUSINESS, R/O. FLAT NO. 404, KRISH CLUB RESIDENCE, CLUB ROAD, BELAGAVI, PIN-590019.

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… RESPONDENT

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(BY SRI. SHREEVASTA HEGDE AND SRI. SOURABH HEGDE, ADVOCATES)

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VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPIDate:2023.12.1111:16:17 +0530

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 05.03.2022 IN CC NO.809/2017 PENDING ON THE FILE OF J.M.F.C. VI, BELAGAVI, AND DIRECT THE TRIAL COURT TO ACCEPT THE MEMO FILED BY THE PETITIONER AND TAKE THE DOCUMENTS PRODUCED BY THE PETITIONER ON RECORDS.

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

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2 - NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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ORDER

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This petition is filed praying to set-aside the order dated 05.03.2022 passed in C.C.No.809/2017 by the Judicial Magistrate First Class, Belagavi and to direct the Trial Court to accept the memo filed by the petitioner and take the documents produced by the petitioner on record.

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Heard learned counsel for the petitioner and learned counsel appearing for the respondent.

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Respondent is the complainant and petitioner is the accused in C.C.No.809/2017. The respondent has initiated proceedings against the petitioner for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881, (hereinafter referred to as the “N.I. Act”, for brevity) and now pending in C.C.No.809/2017. When the case was posted for cross examination of P.W.1 and petitioner/accused filed memo dated 20.12.2021

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along with documents. The learned counsel for the respondent/complainant filed his objections to the said memo. After hearing both sides, learned Magistrate has passed an order on memo and rejected the said memo by

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3 - NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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order dated 05.03.2022. The said order has been challenged in the present petition.

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The case of the complainant before the trial Court is that the petitioner/accused has introduced himself as a Mining Businessman and gained faith of the respondent/complainant and represented complainant that he is having Mining Business under the name and style of “M/S Dahej Minerals Ltd., Goa” and told that the said company owns 217 acres of land and along with other partners he is going to start Mining Business. The petitioner/accused gave proposal to the complainant and said that he will make him as a director in the said company and insisted him to invest the money. By believing words of the petitioner/accused, the respondent/complainant has paid Rs.1,19,00,000/- to the petitioner/accused. It is the case of the respondent/complainant that the petitioner/accused is cheated him and when he asked the petitioner/accused to return the money, he issued two cheques. After dishonor of the said cheque and after issuance of notice, the

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4 - NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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respondent/complainant has filed complaint against the petitioner/accused.

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The case of the petitioner/accused as put forth in para 12 of the present petition that the respondent/complainant inducted in DAHEJ MINERALS LIMITED as Additional director back in year 2015 and certain shares of the company were also transferred in his name and the company has filed its annual return in which the name of the complainant/respondent appears as Shareholding Director.

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Learned counsel for the petitioner/accused submits that when he put question to P.W.1 in cross examination regarding his case as noted above, the Court asked him to produce the documents in that regard and therefore, he filed memo with document to establish his contentions. He further submits that, as instantly he filed memo, he did not mention reasons and relevancy of documents in it.

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5 - NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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The trial Court while passing the impugned

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order has made the following observations in the para 4 of

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the order which reads thus:

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“In the present case, accused filed memo along with documents before the court, but failed to explain how those documents are related to the case in hand, further the accused also not explained in the memo that at this stage why this documents are require and also not explain whether he is intended to exhibit those document on his side.”

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On considering the defence of the

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petitioner/accused, the documents produced along with memo are relevant. There is presumption under Section 138 of N.I. Act that cheque has been issued for making payment of legally enforceable debt or liability. The said presumption is rebuttable presumption. Petitioner/accused has to rebut said presumption by cross examination of complainant and his witnesses and by his evidence. If documents produced by the petitioner/accused are not permitted to be produced then it will affect his right to rebut the said presumption. Therefore, learned Magistrate

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6 - NC: 2023:KHC-D:14199 CRL.P No. 100830 of 2022

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has erred in passing the impugned order in rejecting the memo. In the result, the following:

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ORDER

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The petition is allowed.

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The impugned order dated 05.03.2022 passed

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in C.C.No.809/2017 by Judicial Magistrate First Class, Belagavi, is set aside.

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Learned Magistrate is directed to take on record documents filed with memo by the petitioner/accused.

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Since the matter is of the year 2017, learned

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Magistrate is directed to dispose of the criminal case within a period of six months.

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Sd/JUDGE

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AM & AC CT:BCK List No.: 1 Sl No.: 16

Girish S/O Gopalkrishnaprabhu Desai v. Narayan S/O Laxman Patil

Case brief

What is this about?

What did the court decide?

Girish S/O Gopalkrishnaprabhu Desai v. Narayan S/O Laxman Patil

Case brief

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What did the court decide?

What the court decided

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