Karnataka High Court
Pampapapati S/O Basavaraj Upase vs Suresh S/O Basalingapap Rayareddi on 26 July, 2024
-1-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 103620 OF 2022 (482)
C/W
CRIMINAL PETITION NO. 100789 OF 2022
CRIMINAL PETITION NO. 103615 OF 2022
CRIMINAL PETITION NO. 103621 OF 2022
CRIMINAL PETITION NO. 103623 OF 2022
CRIMINAL PETITION NO. 101045 OF 2023
IN CRL.P NO 103620 OF 2022
BETWEEN
PAMPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST &
SERVICE PROVIDER AND AN NRI IN SERVICE
CONTRACT ASSIGNMENT AT H.NO.312,
IIIRD FLOOR, PAN AFRICA HOUSE, KIMATHI,
AVENUE, KAMPALA, STATE UGANDA,
Digitally signed
by MANJANNA EAST AFRICA AND ALSO AT H.NO. 205,
E
Location: HIGH
IIND FLOOR, MAHALAXMI EIGEN'S
COURT OF
KARNATAKA
APARTMENT, VIDYANAGAR, HUBBALLI-580021.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R PATIL, ADVOCATE)
AND
1. SURESH S/O. BASALINGAPPA RAYAREDDI,
AGE. 54 YEARS, OCC. BUSINESS,
R/O. TALAKAL, TQ. KUKANOOR,
DIST. KOPPAL-583238.
...RESPONDENT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
-2-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT, 1881 IN P.C.NO.217/2021, ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
AGAINST THE PETITIONER AND AN ORDER QUASHING THE
ISSUANCE OF THE SUMMONS, AGAINST THE PETITIONER, BY THE
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
C.C.NO.2046/2021.
IN CRL.P NO 100789 OF 2022
BETWEEN
PAMPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST AND
SERVICE PROVIDER AND AN NRI IN SERVICE
CONTRACT ASSISGNMENT AT H. NO.312,
IIIRD FLOOR, PAN AFRICA HOUSE,
KIMATHI AVENUE, KAMPALA, STATE UGANDA EAST AFRICA
AND ALSO AT H. NO.205, IIND FLOOR,
MAHALAXMI EIGENS APARTMENT,
VIDYANAGAR-HUBBALLI-580021
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R. PATIL, ADVOCATE)
AND
SURESH S/O. BASALINGAPPA RAYREDDI
AGE. 54 YEARS, OCC. BUSINESS,
R/O. BEHIND GHANTI HOSPITAL,
3RD CROSS, HOSUR, HUBBALLI-580021
DIST. DHARWAD.
...RESPONDENT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
-3-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF N.I. ACT,
1881 IN P.C. NO.1794/2021, ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN) AND JMFC, HUBLI AGAINST THE PETITIONER, AND
AN ORDER QUASHING THE ISSUANCE OF THE SUMMONS, AGAINST
THE PETITIONER, BY THE PRINCIPAL CIVIL JUDGE (JR.DN) AND
JMFC, HUBBALLI IN CC NO.6415/2021 AND ETC.
IN CRL.P NO 103615 OF 2022
BETWEEN
PAMPAPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST AND SERVICE
PROVIDER AND AN NRI IN SERVICE CONTRACT
ASSIGNMENT, AT H.NO.312, IIIRD FLOOR,
PAN AFRICA HOUSE, KIMATHI, AVENUE, KAMPALA
STATE UGANDA, EAST AFRICA AND ALSO AT H.NO.205,
IIND FLOOR, MAHALAXMI EIGEN'S APARTMENT,
VIDYANAGAR, HUBBALLI-580021.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R. PATIL, ADVOCATE)
AND
SURESH S/O. BASALINGAPPA RAYAREDDI
AGE. 54 YEARS, OCC. BUSINESS,
R/O. TALAKAL, TQ. KUKANOOR,
DIST. KOPPAL-583238.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF
-4-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
NEGOTIABLE INSTRUMENTS ACT, 1881 IN P.C.NO.220/2021, ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
AGAINST THE PETITIONER AND AN ORDER QUASHING THE
ISSUANCE OF THE SUMMONS, AGAINST THE PETITIONER, BY THE
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
C.C.NO.2048/2021.
IN CRL.P NO 103621 OF 2022
BETWEEN
PAMPAPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST AND SERVICE
PROVIDER AND AN NRI IN SERVICE CONTRACT
ASSIGNMENT, AT H.NO.312, IIIRD FLOOR,
PAN AFRICA HOUSE, KIMATHI, AVENUE, KAMPALA
STATE UGANDA, EAST AFRICA AND ALSO AT H.NO.205,
IIND FLOOR, MAHALAXMI EIGEN'S APARTMENT,
VIDYANAGAR, HUBBALLI-580021.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R. PATIL, ADVOCATE)
AND
SURESH S/O. BASALINGAPPA RAYAREDDI
AGE. 54 YEARS, OCC. BUSINESS,
R/O. TALAKAL, TQ. KUKANOOR,
DIST. KOPPAL-583238.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT, 1881 IN P.C.NO.216/2021, ON THE
-5-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
AGAINST THE PETITIONER AND AN ORDER QUASHING THE
ISSUANCE OF THE SUMMONS, AGAINST THE PETITIONER, BY THE
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
C.C.NO.2047/2021.
IN CRL.P NO 103623 OF 2022
BETWEEN
PAMPAPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST AND SERVICE
PROVIDER AND AN NRI IN SERVICE CONTRACT
ASSIGNMENT, AT H.NO.312, IIIRD FLOOR,
PAN AFRICA HOUSE, KIMATHI, AVENUE, KAMPALA
STATE UGANDA, EAST AFRICA AND ALSO AT H.NO.205,
IIND FLOOR, MAHALAXMI EIGEN'S APARTMENT,
VIDYANAGAR, HUBBALLI-580021.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R. PATIL, ADVOCATE)
AND
SURESH S/O. BASALINGAPPA RAYAREDDI
AGE. 54 YEARS, OCC. BUSINESS,
R/O. TALAKAL, TQ. KUKANOOR,
DIST. KOPPAL-583238.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT, 1881 IN P.C.NO.219/2021, ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
AGAINST THE PETITIONER AND AN ORDER QUASHING THE
ISSUANCE OF THE SUMMONS, AGAINST THE PETITIONER, BY THE
-6-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
C.C.NO.2045/2021.
IN CRL.P NO 101045 OF 2023
BETWEEN
PAMPAPAPATI S/O. BASAVARAJ UPASE,
AGE. 64 YEARS, OCC. AGRICULTURIST AND SERVICE
PROVIDER AND AN NRI IN SERVICE CONTRACT
ASSIGNMENT, AT H.NO.312, IIIRD FLOOR,
PAN AFRICA HOUSE, KIMATHI, AVENUE, KAMPALA
STATE UGANDA, EAST AFRICA AND ALSO AT H.NO.205,
IIND FLOOR, MAHALAXMI EIGEN'S APARTMENT,
VIDYANAGAR, HUBBALLI-580021.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDA FOR
SRI. MAHANTESH R. PATIL, ADVOCATE)
AND
SURESH S/O. BASALINGAPPA RAYREDDI
AGE. 54 YEARS, OCC. BUSINESS,
R/O. TALAKAL, TQ. KUKANOOR,
DIST. KOPPAL-583238.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO AN ORDER QUASHING, THE TAKING OF THE
COGNIZANCE OF THE OFFENCE PUNISHABLE U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT, 1881 IN P.C.NO.218/2021, ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
AGAINST THE PETITIONER AND AN ORDER QUASHING THE
ISSUANCE OF THE SUMMONS, AGAINST THE PETITIONER, BY THE
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C. KOPPAL
C.C.NO.3032/2021.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.07.2024, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
-7-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022,
CRL.P.NO.103621/2022, CRL.P.No.103623/2022,
CRL.P.No.101045/2023.
COMMON ORDER
The petitioner/accused has filed these criminal petitions against respondent/complainant in Crl.P.Nos.103620/2022, 100789/2022, 103615/2022, 103621/2022 103623/2022 and 101045/2023 under Section 482 of Cr.P.C. to quash the entire proceedings in P.C.No.217/2021, P.C.No.1794/2021, P.C.No.220/2021, P.C.No.216/2021, P.C.No. 219/2021 and P.C.No.218/2021 on the file of learned Principal Civil Judge and JMFC, Koppal and P.C.No.1794/2021 on the file of learned Principal Civil Judge & JMFC, Hubali by their order dated 06.09.2021, 10.08.2021, 06.09.2021, 06.09.2021, 06.09.2021 and 06.09.2022 taking cognizance of the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 in C.C. No.2046/2021, C.C. No.6415/2021, C.C. No.2048/2021 C.C. No.2047/2021, C.C. No.2045/2021 and C.C. No.3032/2022 by issuing process to the petitioner.
2. For the sake of convenience the parties are referred to as per their ranking before the Trial Court. The petitioner is accused and the respondent is the complainant before the Trial Court. In all the matters, the petitioner and -8- NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
the respondent are common, common facts and questions of law, all the matters are taken up together for hearing and the common order is being passed.
3. Heard learned counsel for the accused and learned counsel for complainant in all the cases.
4. The complainant and the accused are well know to each other since many years. Hence, accused had approached the complainant to lend hand loan. Accordingly, the complainant lent hand loan to the accused and in consideration thereof the accused issued cheques in favour of the complainant. The details of the transaction are as under;
Sl. Date of Date of issue Amount in
P.C.No. Cheque No.
No. loan of cheque Rs.
1 217/2021 Oct.2019 03.02.2021 000250 24.00,000/-
2 1794/2021 000227
000228
- 05.05.2021 65,00,000/-
000233
000224
3 220/2021 - 03.02.2021 000251 26,00,000/-
4 216/2021 - 15.01.2021 000246 49,00,000/-
5 219/2021 - 03.02.2021 000249 24,00,000/-
6 218/2021 000227
000228
- 05.05.2021 65,00,000/-
000233
000224
-9-
NC: 2024:KHC-D:10639
CRL.P No.103620 of 2022
C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
5. On presentation of the aforesaid cheques, same were returned with a shara "funds insufficient" in the account maintained by the accused. Hence, after receipt of Bank endorsements, the complainant issued legal notices to the accused calling upon him to pay an amount due under the cheques. But the accused neither paid amount due under the cheques nor replied to the legal notices. Hence, the complainant filed in all six private complaints before the Trial Court under Section 200 of Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, ("N.I.Act." for short.)
6. Soon after the institution of the private complaints, the trial court recorded the sworn statement of the complainant, took cognizance and issued process against the accused. Taking exception to the same, the petitioner- accused has filed these petitioners contending that, the accused has not at all issued any cheques to the complainant. The accused disputed the issue of cheques and signature found therein. It is contended that, the complainant misused these cheques and misappropriated the
- 10 -
NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
funds of accused. The complainant misused the relation of good faith, when he found those lost cheques, instead of returning to its original owner or returned to the Bank. On the contrary, the complainant committed breach of trust and taken law into his own hands and forged the signature of the accused. It is contended that, on 18.01.2021 a sum of Rs.49,000/- has been withdrawn from ICICI Bank Account No.4224 and Rs.3,52,000/- has been transferred from ICICI Loan Account No.116 by the complainant, by way of forgery. In this regard, the accused complaining for having lost/stolen by someone else. It is contended that, in the absence of accused at Hubballi, his employees lodged complaint about theft of cheques.
7. It is contended that, no notices have been served on the accused as petitioner-accused was residing in abroad. Further, the complainant has not submitted his affidavits in support of private complaints. Learned Magistrate has not applied his mind to the decision rendered by the Hon'ble Apex Court in the case of Priyanka Srivastav and another
- 11 -
NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
Vs. State of U.P and others1. Further, the Trial Court has not properly taken cognizance as required under Section 190(1) of Cr.P.C., and issued process against the accused machanically.
8. In support of his contention, learned counsel for the petitioner has relied on the following decisions.
1. K.Subramani Vs. K. Damodara Naidu reported in (2015) 1 SCC 99.
2. Mahdoom Bawa Bahrudeen Noorul Vs. Kaveri plastics in Crl.M.C.No.2164/2022 & Crl.M.A.9155/2022.
3. Omniplast Private limited Vs. Standard Chartered Bank and others reported in (2015) 15 SCC 693.
4. Dharna Goyal Vs. Aryan Infratech Pvt. Ltd., reported in 2020 SCC Online Del 2075.
5. K.Gopal V. T.Mukunda in Crl.P.No.1011/2016.
9. Learned counsel for the complainant contended that, there is no irregularity in institution of private complainants and the Trial Court has not at all committed any irregularity in taking cognizance and issue of process against the accused. Now, the accused is disputing question of fact, which cannot be gone into under Section 482 of 1 (2015) 6 SCC 287
- 12 -
NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
Cr.P.C., hence, the counsel prayed to dismiss all the petitions.
10. Perused the material available on record. As per the contents of the complaints and sworn statements, the accused issued six cheques in favour of complainant on different dates and different amounts. On being presentation of the said cheques, same were returned with shara "funds not sufficient". Thus, the complainant issued legal notice and later he filed six private complaints.
11. In the instant cases, the accused has disputed the transactions. However, in paragraph Nos.10 of the petition (Crl.P.No.103620/2022) he admits that, the complainant withdrew a sum of Rs.49,000/- and Rs.3,52,000/- from the account of accused. However, the accused has taken contention that, the said amount was drawn by forging signature of accused. As per the contention of accused all the cheques were stolen. In this regard, the accused has not registered a FIR against complainant alleging forgery and theft of cheques.
- 13 -
NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
12. Though, the accused disputed service of legal notice, but at paragraph No.12 of the petition admits that, "the petitioner has received, through his e-mail address, notice sent by Rajesh V.Bannimath, Advocate, on 21.07.2021 calling upon the accused to pay a sum of Rs.70,00,000/- and Rs.10,00,000/- and finally demanded a sum of Rs.1,10,00,000/-. It shows that, the accused had the receipt of the legal notice.
13. Whether, the issuance of cheques is admitted or disputed, is a matter of trial and it requires full probe. If at all, cheques were not issued to the complainant, the accused is at liberty to refer the matter to the handwriting expert under Section 45 of Indian Evidence Act.
14. Learned counsel for accused contended that, the accused is Non Resident of India (NRI) and while issuing cheques in question, the accused was not in India, thus, how can he issue cheques in favour of complainant, thereby the accused has taken plea of alibi. In order to prove alibi, it requires trial. At this juncture, plea of alibi cannot be taken
- 14 -
NC: 2024:KHC-D:10639 CRL.P No.103620 of 2022 C/W CRL.P No. 100789/2022, CRL.P No. 103615/2022, CRL.P.NO.103621/2022, CRL.P.No.103623/2022, CRL.P.No.101045/2023.
into consideration. Once, plea of alibi is taken, the burden shifts on the accused. In this case the accused has disputed various question of fact. Hence, the disputed question of fact cannot be gone into under Section 482 of Cr.P.C in view of the ratio laid down in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others2. Hence, there are no merits in these petitions. Accordingly, these petitions are hereby dismissed being devoid of merits.
15. In view of dismissal of the main petitions, all pending applications, if any, in all the petitions stand disposed off.
16. Keep the original order in Crl.P.No.103620/2022 and photo copy of the same shall keep in other petitions.
Sd/-
JUDGE ME/CT-AN List No.: 1 Sl No.: 35 2 AIR 2021 SC 1918