Moore Living India Building Solutions LLP Vs M/S Gowri Infra Engineers Pvt. Ltd.

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NC: 2025:KHC:2538 CRL.P No. 6903 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL PETITION NO. 6903 OF 2019

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BETWEEN:

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MOORE LIVING INDIA BUILDING SOLUTIONS LLP A LIMITED LIABILITY PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO.611 SOMDUTT CHAMBERS-II NO.9, BIKAJI CAMA PLACE NEW DELHI - 110 066 REPTED BY ITS FOUND PARTNER MR. BISWAS KUMAR

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Digitally signed by NANDINI B G Location: high court of karnataka

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BISWAS KUMAR AGED ABOUT 45 YEARS FOUNDER PARTNER MOORE LIVING INDIA BUILDING SOLUTIONS LLP A LIMITED LIABILITY PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO.611 SOMDUTT CHAMBERS-II NO.9, BIKAJI CAMA PLACE NEW DELHI - 110 066

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PRESENTLY RESIDING AT NO.105 KETHANA RESIDENCY 16^TH CROSS, 1^ST A MAIN VIGNAN NAGAR BANGALORE - 560 075

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…PETITIONERS

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(BY SRI. SIJI MALAYIL, ADVOCATE)

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AND:

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M/S. GOWRI INFRA ENGINEERS PVT LTD. A COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING ITS REGISTERED OFFICE AT NO.149, 10^TH MAIN RMV EXTENSION SADASHIVA NAGAR

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NC: 2025:KHC:2538 CRL.P No. 6903 of 2019

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BANGALORE - 560 080 PRESENTLY OFFICE AT NO.41 WARD NO.41, BASAVESHWARA NAGARA HBCS, 2^ND STAGE ATTIGUPPE, CHANDRA LAYOUT BANGALORE - 560 040. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR MC. C.P. UMESHA.

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…RESPONDENT

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(BY SRI. MALLIKARJUN N.K., ADVOCATE SRI. A. SAMPATH, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.08.2019 IN C.C.NO.18187/2016 PASSED BY THE XXVII ADDL. C.M.M., BENGALURU PRODUCED HEREWITH AS ANNEXURE-A; DIRECT THE XXVII ADDL. C.M.M. BENGALURU TO ISSUE SUMMONS TO THE WITNESSES MENTIONED IN THE SAID APPLICATION PRODUCED HEREWITH AS ANNEXURE-B FILED BY THE PETITIONERS AND ALLOW THIS PETITION.

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

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL ORDER

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The petitioners being the accused in CC No.18187 of 2016 on the file of the learned XXVII Additional Chief Metropolitan Magistrate, Bengaluru, registered for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act'), is impugning the order dated

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29.08.2019 rejecting the application filed by the petitioners seeking issuance of summons to the witnesses under Section 254(2) of Cr.P.C.

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Brief facts of the case are that, the respondent as complainant filed the private complaint against the petitioners alleging commission of the offence punishable under Section 138 of NI Act. The Trial Court took cognizance of the offence and registered CC No.18187 of 2016 for the aforesaid offence. The complainant got examined as PW1. Statement of the petitioners - accused under Section 313 of Cr.P.C. was recorded. The petitioners filed an application under Section 254(2) of Cr.P.C. seeking issuance of summons to the witnesses. He has cited as many as 23 witnesses in the application and sought for issuance of summons. The Trial Court vide order dated 29.08.2019 rejected the said application. Being aggrieved by the same, the petitioners are before this Court.

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Heard Sri Siji Malayil, learned counsel for the petitioners and Sri N K Mallikarjun, learned counsel for the respondent. Perused the materials on record.

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NC: 2025:KHC:2538 CRL.P No. 6903 of 2019

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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"Whether the petitioners have made out any grounds to set aside the order dated 29.08.2019 passed by the Trial Court?"

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My answer to the above point is 'partly in the affirmative' for the following:

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REASONS

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It is the contention of the petitioners that the petitioners being the accused are required to prove their defence that they have completed the work that was entrusted to them. Under such circumstances, the complainant is not entitled to present the cheque in question, which was issued as security, as per the Minutes of Meeting dated 03.10.2012 produced vide Annexure-E marked as per Ex.P12 before the Trial Court. Since the complainant is denying completion of the work as undertaken by the accused, the petitioners are intending to examine as many as 23 witnesses to prove their defence. However, it is brought to the notice of the Court that the petitioners have not stepped into the witness box.

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5 - NC: 2025:KHC:2538 CRL.P No. 6903 of 2019

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After addressing the arguments for sometime,

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learned counsel for the petitioners submits that the petitioners restrict their claim to examine only four witnesses i.e., witness at Sl.No.2 - Mr Jaffer (Equipment & Machinery supplier), Bengaluru; witness at Sl.No.14 - Deepak Jain (Director, Simplex Engg. & Foundry Works Pvt. Ltd., Chatthisgarh; witness at Sl.No.16 - Somashekar (Director of P G Shetty Construction Pvt. Ltd.), Mysuru; and witness at Sl.No.22 - Executive Engineer, BDA, HBD-I, Bengaluru. Learned counsel also submits that since the witness at Sl.No.14 - Deepal Jain is the resident of Chatthisgarh, he takes the responsibility of serving the witness by taking hand summons and keep the witness present before the Trial Court for examination. The other three witnesses i.e., at Sl.Nos.2, 16 and 22 are at either Bangalore or Mysuru.

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Considering the contentions taken by the complainant as well as by the accused and since once the accused admits issuance of cheque and contends that it is issued as a security and that the complainant is not entitled to present the same for encashment, the burden shifts on the accused to rebut the legal presumption under Sections 118 and

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139 of NI Act. Under such circumstances, the accused is entitled to lead the rebuttal evidence. Since the learned counsel for the petitioners restricted the claim to examine only four witnesses, out of 23 cited in the application and also undertakes that the witness at Sl.No.14 - Deepak Jain who is from Chatthisgarh, will be kept present after serving hand summons on him, I am of the opinion that the trial in the matter could be expedited and no prejudice would be caused to the complainant. At the same time, the interest of the accused is also safeguarded. Apprehension of the learned counsel for the respondent that under the guise of seeking summons to the witnesses, the petitioners shall not drag on the matter indefinitely is taken care of. Hence, I am of the opinion that the petition is liable to be allowed. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following:

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ORDER

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(i) The Criminal Petition is allowed in part.

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(ii) The order dated 29.08.2019 passed in CC No.18187

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of 2016 on the file of the learned XXVII Additional Chief Metropolitan Magistrate, Bengaluru, in so far as rejection of the

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application by the Trial Court in respect of Sl.Nos.2, 14, 16 and 22 is hereby set aside.

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(iii) The rejection of the application by the Trial Court in respect of other witnesses is upheld.

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(iv) The Trial Court is directed to issue Court notice to the witnesses at Sl.Nos.2, 16 and 22 and issue hand summons to witness at Sl.No.14, with a direction to the petitioners to keep the said witness present after serving hand summons. The Trial court shall ensure conclusion of the trial expeditiously as the criminal case is of the year 2016.

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SD/(M G UMA) JUDGE

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*bgn/CT:VS List No.: 1 Sl No.: 25

Moore Living India Building Solutions LLP v. M/S Gowri Infra Engineers Pvt. Ltd.

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Moore Living India Building Solutions LLP v. M/S Gowri Infra Engineers Pvt. Ltd.

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