Partly allowed

Smt. Selvi Ceceliya a v. Smt. Poornima

Karnataka HC1 Feb 2023CRL.P/3177/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition under Section 482 Cr.P.C. to quash proceedings against Accused No.1 who was not a signatory. The court dismissed the petition regarding Accused No.2 and held that a clerical date error in the notice did not invalidate proceedings under Section 138 NI Act.

What did the court decide?

Criminal proceedings in C.C.No.23900/2017 against Accused No.1 were quashed; proceedings against Accused No.2 to continue.

Smt. Selvi Ceceliya a Vs Smt. Poornima — Cheque Dishonour | Karnataka HC (2023)

¶1

¶2

CRL.P No. 3177 of 2018

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 1^ST DAY OF FEBRUARY, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 3177 OF 2018

¶7

BETWEEN:

¶8

SMT. SELVI CECELIYA A W/O PREM KUMAR AGED 47 YEARS,

¶9

SRI PREM KUMAR S/O MR ARUL PILLAI M AGED 47 YEARS

¶10

Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

¶11

BOTH ARER/O #47, SOUTH ROAD, AUSTIN TOWN, BENGALURU-47

¶12

…PETITIONERS

¶13

(BY SRI. MANJUNATH K S.,ADVOCATE)

¶14

AND:

¶15

SMT. POORNIMA W/O MR N M GANESHKUMAR AGED 49 YEARS, R/AT #237, 2ND FLOOR, 2ND CROSS, 2ND MAIN, HANUMANTHANAGAR BENGALURU-560019.

¶16

…RESPONDENT

¶17

(BY SRI.SANDEEP HUILGOL, ADVOCATE)

¶18

CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN

¶19

¶20

CRL.P No. 3177 of 2018

¶21

C.C.NO.23900/2017, PENDING ON THE FILE OF THE LEARNED 12TH A.C.M.M., BANGALORE (ANNEXURE A).

¶22

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

¶23

ORDER

¶24

Private complaint under Section 200 of Cr.P.C. was filed

¶25

by the respondent for the offence under Section 138 of Negotiable Instrument Act, 1881 (for short ' the Act') alleging that, the cheque issued by petitioners/accused Nos.1 and 2 towards legally enforceable debt, when presented for realization was dishonored for want of funds.

¶26

Learned Magistrate after recording the sworn statement registered the case and issued summons. Taking exception to the same, this petition is filed.

¶27

Learned counsel for petitioners/accused Nos.1 and 2 would make following submission:

¶28

i) Accused No.1 was not an authorized signatory to the cheque alleged to have been issued towards legally enforceable debt. Hence, cognizance taken as against accused No.1 is impermissible.

¶29

3 - CRL.P No. 3177 of 2018

¶30

ii) The statutory notice under Section 138 of the Act, issued by the complainant is premature, since the cheque is alleged to have been dishonored on 02.08.2017, and the notice was issued on 30.08.2016.

¶31

In the cross-examination, the complainant has categorically admitted that accused have made part payment of Rs.8,91,500/-, and the same having not been endorsed on the subject cheque, cheque could not have been presented for encashment . In support, he placed reliance on the decision of the Hon’ble Supreme Court in the case of "Dashrathbhai

¶32

Trikambhai Patel V/s. Hitesh Mahendrabhai Pate & Anr" reported in 2022 Live Law (SC) 830 .

¶33

On the other hand, learned counsel for respondent/complainant submits that the payment of Rs.8,91,500/- was towards interest payable by the accused on the loan barrowed by the complainant and the same has been stated in the notice issued under Section 138 of the Act. He further submits that the endorsement issued by the bank clearly indicates that the cheque was presented on 22.07.2008 and the same was returned on 02.08.2017 and there was

¶34

¶35

CRL.P No. 3177 of 2018

¶36

typographical error in mentioning the date in the legal notice and the said error cannot invalidate the notice issued under Section 138 of the Act.

¶37

I have examined the submissions made by the learned counsel for the parties.

¶38

Admittedly, the said cheque was issued by accused No.2, and accused No.1 was not signatory to the said cheque. Hence, cognizance taken as against accused No.1 is impermissible. In the cross-examination, the complainant has categorically admitted sum of Rs.8,91,500/- has been received towards interest payable on the alleged loan amount, and the same is also categorically stated in the notice issued under Section 138 of the Act. Mere typographical error in mentioning the date of issuing notice does not invalidate the notice issued under Section 138 of the act, when the material discloses that the notice was issued after the cheque was dishonored within the time specified.

¶39

Hence, there was no requirement for the complainant to endorse the part payment made by the accused as specified under Section 56 of the N.I.Act, 1881 Hence, the

¶40

5 - CRL.P No. 3177 of 2018

¶41

decision relied by the learned counsel for the petitioners/accused is not applicable to the facts of the case. In view of the same, continuation of criminal proceedings against accused No.1 will be an abuse of process of law.

¶42

Accordingly, I pass the following:

¶43

ORDER

¶44

Criminal Petition is allowed as against accused No.1, and dismissed as against accused No.2.

¶45

Impugned proceedings in C.C.No.23900/2017 on

¶46

the file of XII A.C.M.M. Court, Bengaluru City, insofar it relates to accused No.1 is hereby quashed, and the learned Magistrate

¶47

to proceed against accused No.2 in accordance with law.

¶48

All contentions urged in this petition are kept open.

¶49

Sd/-

¶50

JUDGE

¶51

GPG

Smt. Selvi Ceceliya a v. Smt. Poornima

Case brief

What is this about?

What did the court decide?

Smt. Selvi Ceceliya a v. Smt. Poornima

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Swamy K L Vs State of Karnataka

Sri U Veerendra Hegde Vs State of Karnataka

Harisha Vs Savitha

Pragbhaldas K v Vs State of Karnataka by

Ms. Ambujakshi Vs State of Karnataka

Sri a Elangovan Vs the Mysore Urban Development Authority