Allowed

Dr. Dharmasai v. B H Ramachandra

Karnataka HC4 Jan 2023CRL.P/5786/2018

Case brief

AI extract

What is this about?

Criminal Petitioner challenged cognizance taken in C.C.No.509/2016 regarding cheque dishonour. The Court held the trial court lacked territorial jurisdiction as the cheque was cleared in Bangalore, and the petitioner was not a signatory or debtor, quashing proceedings against him.

What did the court decide?

Criminal proceedings in C.C.No.509/2016 relating to the petitioner-accused No.3 in the file of Senior Civil Judge & JMFC, Thirthahalli are quashed.

Dr. Dharmasai Vs B H Ramachandra — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4TH 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.5786/2018

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BETWEEN

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DR. DHARMASAI AGED ABOUT 58 YEARS D/O. LATE CHINNAPPAGOWDA PRESIDENT SRI. SRI. SRI. JAGADGURU DARMAPEETA SRI KSHETRA PETEMATA AADI SAMSTHANA DAKSHINA KASHI RAMESHWARA YATHRA KENDRA DEVI CHAMUNDESHWARA ANTHARASTRIYA SRI KRISHNA TEMPLE PETEMATA TRUST, BOGARUKOPPA VILLAGE CHAKKODABAILU, THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577 432.

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...PETITIONER

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(BY SRI CHIDAMBARA G.S., ADVOCATE)

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AND:

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B.H. RAMACHANDRA AGED ABOUT 52 YEARS S/O LATE HONNEGOWDA R/O NO.518, 12TH MAIN ROAD M.S. RAMAIAH LAYOUT BENGALURU-560 073.

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...RESPONDENT

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(BY SRI M.G. RAVISHA, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.509/2016,PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, IN SO FAR AS IT RELATES TO THE PETITIONER.

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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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The respondent has filed a private complaint under

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Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, alleging that the cheque which was issued by accused No.1 towards legal enforceable debt when presented for realisation was dishonoured for want of funds.

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The learned Magistrate after recording the sworn statement took cognizance of the aforesaid offence and issued summons to the petitioner-accused No.3. Taking exception of the same, petitioner-accused No.3 is before this Court.

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Learned counsel appearing for the petitioneraccused No.3 makes the following submissions:

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a) Cognizance taken by the learned Magistrate is

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without territorial jurisdiction, since the cheque was presented by the complainant through his banker at branch situated in Bangalore and the complaint was filed before the learned Magistrate at Thirthahalli and the same is not maintainable as specified under Section 142 (2) of N.I. Act.

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b) The subject cheque was not issued by the accused No.3 as he was not the signatory to the said cheque and as such the cognizance taken by the learned Magistrate in sofar it relates to accused No.3 is impermissible.

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c) The subject cheque is alleged to have been issued by accused No.1 in respect of transactions between the accused No.1 and the complainant and in the absence of any legal enforceable debt as against the accused No.3, cognizance taken by the learned Magistrate is impermissible.

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d) In support of his contentions, he places reliance on

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the decision of the Hon'ble Supreme Court in the case of M/s Bridgestone India Pvt. Ltd. -vs- Inderpal Singh reported in 2016 CRI.L.J. 553 at para 12.

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I have considered the submissions of the learned counsel for the parties.

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A perusal of the complaint indicates that the

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subject cheque was presented by the complainant through his banker at branch situated in Bangalore. The complaint is presented before the learned Magistrate at Thirthahalli. The Hon'ble Supreme Court in the case of M/s Bridgestone supra at para 12 has held as follows:

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"12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)( a ), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia, in the territorial jurisdiction of the court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142-A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case [ Dashrath Rupsingh Rathod v. State of Maharashtra , (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673], would not stand in the way of the

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appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises".

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Section 142(2) (a) & (b) of N.I. Act specifies that

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the offence under Section 138 of N.I. Act can be tried by the

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Court within whose jurisdiction the branch of the bank where payee maintains the account is situated, if the cheque is delivered through an account.

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In the instant case, the cheque was delivered

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through the bank situated in Bengaluru. Hence, the cognizance taken by the learned Magistrate at Thirthahalli is one without territorial jurisdiction.

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Perusal of the complaint averments and also subject cheque indicates that accused No.3 is not a signatory to the subject cheque so as to constitute commission of the offence punishable under Section 138 of N.I. Act against the petitioneraccused No.3. Even otherwise, the subject cheque was issued in respect of a transaction between the complainant and the accused No.1 and accused No.3 was not a party to the said

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transactions. Hence, in the absence of any legally enforceable debt against the petitioner-accused No.3 herein, cognizance taken by the learned Magistrate for the offence punishable under Section 138 of the N.I.Act is impermissible.

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In view of the above, continuation of the criminal proceedings against the petitioner-accused No.3 will be an abuse of process of law, since the probability of conviction of the petitioner-accused No.3 is remote and bleak. Accordingly, I pass the following:

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ORDER

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