Accused sought quashing of a Section 138 NI Act complaint alleging cognizance was wrongly taken without the original cheque. With evidence concluded and the matter posted for arguments after five years, the High Court held the objection is a defence for trial and dismissed the petition.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 4745 OF 2023
BETWEEN:
Digitally signed by VEDAVATHI A K Location: High Court of Karnataka
(BY SRI. K. RAM SINGH, ADVOCATE)
AND:
…PETITIONERS
…RESPONDENT
(BY SRI. S. SHIVA KUMAR, ADVOCATE AND SRI. S. SRINIVASAMURTHY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDING AGAINST THE PETITIONER IN C.C.NO.9488/2018 FILED BY RESPONDENT FOR THE OFFENCE P/U/S.138 OF NI ACT PENDING ON THE FILE OF THE XIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition filed by the petitioner/accused under Section 482 of Cr.P.C., for quashing this criminal proceedings in C.C.No.9488/2018 pending on the file of XIII Additional CMM Bengaluru for the offence punishable under Section 138 of NI Act.
petitioner approached this court by challenging, taking of the cognizance by the trial court.
NC: 2024:KHC:1578 CRL.P No. 4745 of 2023
returned through courier service, the accused, with the help of some staff of respondent, took the original cheque and torn it. Therefore, complaint also filed before police for the offence punishable under sections 380 and 201 of IPC. The complainant already examined the bankers and adduced the secondary evidence. The evidence of the complainant is already completed and accused counsel also cross examined the complainant. But no cross examination is done on the evidence of PW2/the bank manager. The accused also was examined as D.W.1. Subsequently, various applications were filed which are all allowed and reserved by the trial court. Those are not challenged before the appellate courts. However, matter was posted for final arguments and the respondent filed application for recalling P.W.1., which was allowed by the trial court and matter is posted for further examination chief of the complainant/witness. On perusal of entire documents, and the order sheet, it reveals, the complaint is pertaining to the 2018. The Trial Court took the cognizance as on 05.04.2018. Subsequently, the petitioner was arrested and released on bail. Plea was recorded and thereafter both side evidence was lead and it was concluded.
The petitioner also filed an application under Section 65 and 65A of the Indian Evidence Act, which also came to be dismissed, which was not challenged. Even the accused also filed another application under Section 311 Cr.P.C. for recalling witness which was also dismissed. The complainant also field application for recalling witnesses, which was allowed. These orders were not challenged by the learned counsel for the petitioner but after conclusion of 5 years, in the fag end of the trial, the petitioner approached this court for quashing the cognizance taken by the Trial Court, only on the ground, the cheque was not original and it was a photo copy. This court cannot appreciate the evidence which is adduced before the Trial Court, either oral or documentary evidence. The petitioner can take the defense in the trial of the case. The criminal case registered by the police against the petitioner said to be ended in acquittal However, when the evidence was completed by both the parties. The Trial Court is left with only appreciating the evidence and pass the judgment. At this stage, this court if expressed any opinion regarding merits of the case, it will definitely prejudice the case of the parties. Therefore, I am of the view, when the petitioner has not
NC: 2024:KHC:1578 CRL.P No. 4745 of 2023
approached this court at first instance and when cognizance was taken but the matter is in the fag end, he cannot challenge the same. Therefore, I am of the view, it is not a fit case for interfering with the orders of taking cognizance. Hence, the petition is devoid of merits.
Accordingly, this petition is hereby dismissed .
Sd/JUDGE
AKV List No.: 1 Sl No.: 41 CT:SK
1 issue framed by the court
Whether cognizance in a Section 138 NI Act case can be quashed under Section 482 CrPC on the ground that only a photocopy of the cheque was produced, at the fag end of trial.
2 provisions across 2 enactments
Pradeep Kumar Pandey
S. Kalicharan
Shankarlal Choudary
K.Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
