Smt. Meena Vijay vs Sri Ramesh L B
2021 Latest Caselaw 417 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JANUARY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.3080/2020

BETWEEN:

SMT. MEENA VIJAY,
W/O LATE KARUNAKAR VIJAY,
AGED ABOUT 68 YEARS,
R/AT NO.9/5, 1ST FLOOR, 2ND MAIN,
6TH CROSS, GOVINDARAJANAGAR,
BENGALURU-560 041.                          ... PETITIONER

          [BY SRI. PRASAD K.R. RAO, ADVOCATE FOR
       M/s. INDRAPRASTHA ASSOCIATES (THROUGH VC)]

AND:

SRI. RAMESH L.B.,
S/O. B. LINGAPPA,
AGED ABOUT 41 YEARS,
R/AT NO.27/2, HEMA NILAYA,
1ST CROSS, SAMPIGE ROAD,
MALLESHWARAM,
BENGALURU-560 003.                         ... RESPONDENT

         (BY SRI. SANTHOSH KUMAR M.B., ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 19.12.2019
THEREBY ISSUING SUMMONS TO THE PETITIONER, TAKING
COGNIZANCE OF THE OFFENCE PUNISHABLE UNDER SECTION
138 OF THE N.I. ACT AND SUBSEQUENTLY TO QUASH ALL
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FURTHER PROCEEDINGS IN C.C.NO.314/2020 PENDING ON THE
FILE OF THE HON'BLE XIII A.C.M.M., AT BENGALURU.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Heard the learned counsel for the petitioner and the

learned counsel appearing for the respondent.

2. The factual matrix of the case is that the respondent

initiated the proceedings under Section 138 of the Negotiable

Instruments Act, 1881 against this petitioner and the Trial Judge

after recording the sworn statement has taken the cognizance.

Hence, the present petition is filed before this Court.

3. Learned counsel appearing for the petitioner would

submit that the Trial Judge has committed an error in taking

cognizance. Though the complainant relied upon the cheque for

a sum of Rs.1,50,000/- in the complaint and demand notice, he

has demanded only Rs.1,20,000/-. Learned counsel in support of

his contention relied upon the judgments of the Apex Court in

the case of Suman Sethi v. Ajai K Churiwal and Another

reported in (2000) 2 SCC 380 and in the case of Rahul

Builders v. Arihant Fertilizers and Chemicals and Another

reported in (2008) 2 SCC 321.

4. Learned counsel for the petitioner referring to these

two judgments would vehemently contend that the legal notice

must be in respect of the cheque amount. In the notice, the

claim made is only with regard to the amount of Rs.1,20,000/-.

Hence, there is no legal compliance as such and the Trial Court

ought not to have taken the cognizance.

5. Per contra, learned counsel appearing for the

respondent would submit that the accused/petitioner herein

issued the cheque for a sum of Rs.1,50,000/- towards legally

recoverable debt. Subsequent to the issuance of the cheque for a

sum of Rs.1,50,000/-, the petitioner had made part payment of

Rs.30,000/- and same has been stated in the notice. Hence, the

very contention of the petitioner cannot be accepted.

6. Having heard the submissions of the learned counsel

for the petitioner and learned counsel for the respondent and so

also the principles laid down in the judgments referred supra,

the Apex Court discussed at para No.8 of the judgment in

Suman Sethi's case with regard to the issuance of the notice

and held that demand has to be made for the said amount i.e.,

cheque amount. Learned counsel also brought to the notice of

this Court para No.11 of the judgment in Rahul Builders' case,

wherein the Apex Court has also discussed the earlier judgment

and come to the conclusion that if no such demand is made the

notice no doubt would fall short of its legal requirement. There is

no dispute with regard to the fact that there must be a demand

as contemplated under the provisions of the N.I. Act before

lodging the complaint. In the present case, notice has also been

issued and the contents of the notice is also specific with regard

to the issuance of cheque and also the payment made

subsequent to the issuance of the cheque.

7. The other contention of the learned counsel for the

petitioner is that there is a material alteration in the cheque.

Learned counsel appearing for the respondent would submit that

only the date of issuance of the cheque has been altered and this

petitioner has signed the cheque while changing the date and

the said cheque bears the signature of the petitioner. The issue

of material alteration also has to be considered during the course

of the trial. Hence, I do not find any error committed by the Trial

Court in taking cognizance against the petitioner. The grounds

urged by the petitioner or the defence taken by the learned

counsel for the petitioner has to be considered by the Trial Court

only in the full fledged trial.

8. In view of the discussions made above, I pass the

following:-

ORDER

The petition is dismissed.

In view of dismissal of the main petition, I.As do not

survive for consideration and the same stand disposed of.

Sd/-

JUDGE

PYR