Shabbir Ahammed Vs Smt. Rizwana Banu — Cheque Dishonour | Karnataka HC (2025)

Shabbir Ahammed Vs Smt. Rizwana Banu — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Petition under Section 482 Cr.P.C allowed; the order dated 14.01.2022 passed by the learned VI Additional Small Cause Judge and ACMM, Mangalore in C.C.No.3917/2018 is quashed, setting aside the arraignment of the petitioner as accused No.3.

Issue for consideration

Whether the learned Magistrate erred in exercising power under Section 319 Cr.P.C to implead the petitioner as an additional accused (accused No.3) in the Section 138 N.I. Act complaint, where the petitioner was not arraigned in the complaint, no statutory notice under Section 138 N.I. Act was issued to him, and the signature allegation rested solely on the say of a co-accused.

Court's answer

To initiate proceedings of this nature (a Section 138 complaint) against a person, there shall be compliance with Section 138 of the N.I. Act; this is well settled.

Ratio / Principle

No notice was issued to the petitioner calling upon him to pay the cheque amount; accordingly, there was no compliance of the mandatory provisions of Section 138 of the N.I. Act qua the petitioner.

Key takeaways

It was not made clear in what capacity the petitioner signed the cheque; the allegation was only the say of a co-accused. In that view, the learned Magistrate grossly erred in allowing the Section 319 Cr.P.C application impleading the petitioner as an additional accused; the petition therefore succeeds.ratio¶¶37

Detailed headnote1 paragraphs

Negotiable Instruments Act, 1881 — S.138; Code of Criminal Procedure, 1973 — S.319; S.482 — Quashing of order impleading additional accused during trial. The petitioner was not arraigned in the complaint under S.138 N.I. Act against M/s. B.J. Doddamani Stones Industries and its proprietors (Zabiulla and Altaf) concerning cheque No.873315 dated 19.06.2018 for Rs.18,20,000. On accused No.2 (DW.1) stating in cross-examination that the cheque signatures belonged to accused No.1 and the petitioner, the Magistrate allowed the complainant's S.319 application and arraigned the petitioner as accused No.3. Held: (i) compliance with S.138 N.I. Act, including statutory notice demanding payment, is mandatory to initiate such proceedings against any person; admittedly no notice was issued to the petitioner; (ii) the capacity in which the petitioner signed the cheque was not made clear and the allegation rested only on the say of a co-accused; the Magistrate grossly erred in allowing the S.319 application. Impugned order dated 14.01.2022 in C.C.No.3917/2018 quashed; criminal petition allowed (Mohammad Nawaz, J.).

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NC: 2025:KHC:15660 CRL.P No. 2857 of 2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16^TH DAY OF APRIL, 2025

BEFORE

THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ CRIMINAL PETITION NO. 2857 OF 2022

BETWEEN:

SHABBIR AHAMMED S/O B J DODDAMANI BUDAN SAB AGED ABOUT 43 YEARS M/S B J DODDAMANI STONES INDUSTRIES R/AT SY NO. 73, CHALAGERI RANEBENNUR TQ HAVERI DISTRICT - 581 145.

…PETITIONER

(BY SRI. PRASAD HEGDE K.,ADVOCATE)

AND:

Digitally signed by LAKSHMI T Location: High Court of Karnataka

SMT. RIZWANA BANU W/O SHABBIER AHMED AGED ABOUT 42 YEARS PROPRIETOR S. RIZWANA VALET SERVICE R/AT HOUSE NO 746 15^TH MAIN, 19^TH CROSS A BLOCK, SAHAKARANAGAR BANGALORE - 560 092.

…RESPONDENT

(BY SMT. L.V. APARNA.,ADVOCATE)

THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 14.01.2022 MADE IN CC NO. 3917/2018 PASSED UNDER SECTION 319 OF CR.P.C PENDING ON THE FILE OF VI ADDITIONAL SMALL CAUSE JUDGE AND ACMM (SCCH-02).

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:15660 CRL.P No. 2857 of 2022

CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

ORAL ORDER

Petitioner is aggrieved by the order dated 14.01.2022 passed in C.C.No.3917/2018 by the learned VI Additional Small Cause Judge and ACMM, Mangalore.

Heard the learned counsel for the petitioner/accused

No.3 and learned counsel appearing for the

respondent/complainant.

Matter arises out of a proceeding initiated by the respondent/complainant alleging an offence punishable under Section 138 of the Negotiable Instrument Act. Admittedly the complaint was filed against M/s. B.J. Doddamani Stones Industries, represented by its proprietors namely 1. Sri. Zabiulla and 2. Sri. Altaf.

It is averred in the complaint that in the first week of May 2016, accused requested the complainant for a hand loan in a sum of Rs.20,00,000/- for improvement of their business, promising him to return the same. The complainant agreed to lend the money step by step and on the

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promise of repayment, in the second week of May 2016, lent Rs.5,00,000/- by way of cash and again in the second week of June 2016, complainant gave another sum of Rs.5,00,000/- by way of cash. In the month of August, accused received a sum of Rs.2,00,000/- and once again in the month of March 2017, accused received a sum of Rs.3,00,000/- by way of cash. Further in the month of May, received a sum of Rs.3,20,000/by way of cash, totally amounting to Rs.18,20,0000/-. Thereafter, in the month of December 2017, complainant approached the accused and requested to return the said money. At that point of time, accused issued a cheque bearing No.873315 dated 19.06.2018 for a sum of Rs.18,20,000/drawn on Canara Bank, Ranebennur Branch, in favour of the complainant.

It is the specific case of the complainant that the cheque issued by the accused named in the complaint, when presented to the Bank for encashment, was returned unpaid for the reason ''funds insufficient'' in the account of the accused. Thereafter, the complainant issued a legal notice calling upon both the accused to pay the amount due to him. Since the amount was not paid, he filed the complaint.

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NC: 2025:KHC:15660 CRL.P No. 2857 of 2022

Petitioner is not at all arraigned as an accused in the complaint. In the course of the Trial, since accused No.2, examined as DW.1, in his cross-examination stated that the signatures in the cheque belonged to his brothers that is accused No.1 and the petitioner herein, the complainant filed an application under Section 319 Cr.P.C which was allowed by the learned Magistrate vide impugned order.

By virtue of the impugned order, petitioner has been arraigned as accused No.3 in the proceedings initiated by the respondent. As already noted, petitioner was not arraigned as an accused in the complaint. It is well settled that to initiate proceedings of this nature against a person, there shall be compliance of Section 138 of the N.I. Act.

Admittedly there was no notice issued to the petitioner calling upon him to pay the cheque amount and therefore, there is no compliance of mandatory provisions of Section 138 of the N.I. Act. Even otherwise, it is the specific case of the complainant that it was accused Nos.1 and 2 shown in the complaint, who approached him for hand loan and received the amount. It is not made clear

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as to in what capacity the cheque was signed by the petitioner. It is only the say of a co-accused. In that view of the matter, learned Magistrate has grossly erred in passing the impugned order, allowing the application filed by the complainant under Section 319 of Cr.P.C to implead the petitioner as an additional accused. The petition therefore succeeds. Accordingly, the following.

ORDER

i). Petition is allowed .

ii). The order dated 14.01.2022, passed by the

learned VI Additional Small Cause Judge and ACMM, Mangalore in C.C.No.3917/2018 is hereby quashed.

Sd/(MOHAMMAD NAWAZ) JUDGE

RL

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