Allowed

Ajaya Marodia v. Shivaramaiah K M

Karnataka HC3 Jan 2023CRL.P/2483/2019

Case brief

AI extract

What is this about?

The Court quashed the Magistrate's order taking cognizance in a cheque-bounce case, ordering the matter remanded for a Section 202 enquiry and proper reasons for the prima facie case.

What did the court decide?

The Magistrate's order taking cognizance dated 25.1.2014 was quashed and the matter remanded to proceed from the stage of taking cognizance after holding an enquiry under Section 202.

Ajaya Marodia Vs Shivaramaiah K M — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO.2483/2019

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BETWEEN:

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AJAYA MARODIA S/O LATE S.S. MARODIA, AGED ABOUT 55 YEARS, PRESENTLY R/O 5/4, BIJOYGARH ROAD, KOLAKATTA-700 092.

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...PETITIONER

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(BY SRI S.B. HALLI, ADVOCATE)

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AND:

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SHIVARAMAIAH K M S/O MAYIGOWDA, AGED ABOUT 40 YEARS, R/O BOMMACHANAHALLI, KASABA HOBLI, RAMANAGARA TALUK-562 159, RAMANAGARA DISTRICT.

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...RESPONDENT

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(BY SMT. SHEETAL SONI, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ORDER IN ISSUING SUMMONS DATED 25.01.2014 AND ALSO FURTHER PROCEEDINGS THERE ON IN C.C.NO.82/2014 (PCR NO.305/2013) ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., RAMANAGARA AND ETC.

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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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Respondent has filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the N.I. Act alleging that the accused had borrowed hand loan of Rs.10,00,000/- and in discharge of the said liability had issued

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three post dated cheques and when the said cheques were presented for realisation were dishonoured for want of funds.

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The learned Magistrate after recording the sworn statement has taken cognizance of the aforesaid offence and issued summons to the petitioner-accused. Taking exception to the same, petitioner-accused is before this Court.

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Learned counsel appearing for the petitioner-accused

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submits that in the absence of any material that the accused had borrowed hand loan, the allegation made in the complaint that the cheques were issued towards discharge of legally enforceable debts is without any substance.

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He further submits that, the learned Magistrate has not assigned any reason while coming to the conclusion that there is a prima facie case to proceed against the accused. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Lalankumar Singh & Ors. Vs. State of Maharashtra.

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He further submits that the accused is residing out side the territorial jurisdiction of the learned Magistrate and as such the cognizance taken by the learned Magistrate without conducting the preliminary enquiry as contemplated under Section 202 of Cr.P.C. is impermissible.

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Learned counsel appearing for the complainant submits that in the absence of any dispute that the cheques belongs to the accused and were also duly signed by the accused, there is presumption that the said cheques were issued towards legally enforceable debt and it is for the accused at the time of trial to produce rebuttal evidence to substantiate his claim that the cheques were not issued towards legally enforceable debt. She further submits that the learned

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Magistrate before taking cognizance has applied his mind and as such cognizance taken by the learned Magistrate does not stands vitiated.

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I have examined the submissions made by the

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learned counsel appearing for the parties.

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The question whether the cheques were issued towards legally enforceable debt or not can be considered after full fledged Trial and at this stage, the question whether the said cheques were issued towards legally enforceable debt in the absence of any evidence cannot be gone into.

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Perusal of the order taking cognizance by the learned Magistrate indicates that the learned Magistrate has perused the entire material on record before forming an opinion that there is a prima facie case to proceed against the accused. The Hon'ble Supreme Court in the case of Lalankumar Singh supra has held that the formation of such an opinion is required to be stated in the order itself and the order taking cognizance is liable to be set aside if no reasons are given therein while coming to

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the conclusion that there is a prima facie case against the accused.

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In the instant case, though the learned Magistrate

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has perused the material on record, however, has not assigned any reason while coming to the conclusion that there exists a prima facie case to proceed against the accused.

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Admittedly, the accused is residing out side the territorial jurisdiction of the learned Magistrate and as such the learned Magistrate before taking cognizance ought to have conducted preliminary enquiry as contemplated under Section 202 of Cr.P.C. Hence, the cognizance taken by the learned Magistrate without holding preliminary enquiry as contemplated under Section 202 of Cr.P.C. is impermissible.

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In view of the same, the impugned order passed by the learned Magistrate taking cognizance of the offence punishable under Section 138 of N.I. Act requires to be quashed and the matter requires to be remanded to the learned Magistrate to proceed from the stage of taking cognizance. Accordingly, I pass the following:

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ORDER

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i) The Criminal petition is allowed;

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ii) Impugned order dated 25.1.2014 passed by the

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Principal Civil Judge and JMFC, Ramanagara in C.C.No.82/2014 (PCR No.305)/2013) is hereby quashed.

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iii) The learned Magistrate to proceed further from the stage of taking cognizance after following procedure prescribed under Section 202 & 204 of Cr.P.C.

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iv) Liberty is reserved with the accused to urge all the

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contentions including that the cheques have been stolen by the complainant before the Trial Court.

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It is need less to state that the complaint is of the year

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2013 and the learned Magistrate is requested to conclude the proceedings within four months from the date of appearance of the accused.

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Sd/JUDGE

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HR

Ajaya Marodia v. Shivaramaiah K M

Case brief

What is this about?

What did the court decide?

Ajaya Marodia v. Shivaramaiah K M

Case brief

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