Karnataka High Court

M/S. Cauvery Medical Center Ltd vs M/S. Teekays Interior Solutions ... on 11 January, 2021

Author: K.Somashekar

                                :1:



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2021

                             BEFORE

           THE HON'BLE MR.JUSTICE K.SOMASHEKAR

              CRIMINAL PETITION NO. 9483 OF 2016

    BETWEEN
    1.    M/s. Cauvery Medical Center Ltd.,
          A public limited company
          Incorporated under the provisions
          of the Companies Act, 1956
          Represented by its Director
          Mr. B.C. Srikanta.

    2.    Mr. B.C. Srikanta
          S/o Late B.S. Chandrashekraiah
          Aged about 68 years

    3.    Mr. G.R. Ravi Kumar
          S/o Late Ramaswamy
          Aged about 71 years

          All the above mentioned
          Persons are carrying on
          Business at No.43/2
          Bellary Road, NH 7
          Sahakara Nagar
          Bangalore - 92.                   ... Petitioners

[Note: The names of Petitioner Nos.1 and 3 are
       deleted vide order dated 21.12.2020]

    (By Smt. Siri Yale, Advocate for
        Sri. Amit Mandgi - Advocate)
                             :2:



AND
M/s. Teekays Interior Solutions Pvt. Ltd.,
A Company incorporated under the
Provisions of the Companies Act, 1956
Having its registered office at
N. J. Chambers, No.22
V.S. Naidu Road, Shivajinagar
Bangalore - 560 051
Rep. by its Director.
                                                  ... Respondent

(By Sri. Nagendra Kumar K, Advocate (Absent))

     This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
proceedings instituted against the petitioner by the
Respondent in C.C.No.52885/2013 pending before the
XIV ACMM, Mayohall Unit, Bangalore for the offence
punishable under Section 138 of N.I. Act.

      This Criminal Petition coming on for Orders, through
video conferencing this day, the court made the following:

                          ORDER

Smt. Siri Yale, learned counsel for the petitioners

appears through video conference. None appear for

Respondent either through video conference or present

before the Court physically. Therefore, it is taken as there

is no argument on the part of the respondent/

complainant.

2. Learned counsel for the petitioners had filed a

memo seeking to delete the names of petitioners 1 and 3

as there are no proceedings pending against them.

Accordingly, this Court on 21.12.2020 while considering

the said memo had permitted to delete the names of

petitioners 1 and 3.

3. In this petition, the petitioners are seeking for

quashing of the criminal proceedings initiated against

them by the respondent/complainant in C.C.No.

52885/2013 pending before the XIV ACMM, Bengaluru for

the offence punishable under Section 138 of the N.I.Act.

4. The brief facts of the case are as under:

The petitioner is a public limited company

incorporate under the provisions of the Companies Act,

1956 and carrying on business in the field of running a

multi-specialty hospital. Whereas the respondent was

carrying on business in field of providing of interior fit out

services to the clients in India and abroad. On

25.11.2008, petitioner and respondent entered into an

agreement. The said agreement was entered into between

parties pursuant to the petitioner accepting the work

order dated 25.11.2008 supplied by the respondent. As

per the terms of the said agreement, respondent was to

complete the entire interior fit out work for the projection

to the satisfaction of the petitioner within four months

from signing of the work order. The total consideration for

the said work as mentioned in the agreement was to tune

of Rs.4,30,00,000/- (Rupees Four Crore thirty lakh). The

works stipulated in the agreement could not be completed

by the respondent and the respondent raised running bills

duly certified by the project management consultant for

the work completed to the tune of Rs.3,52,66,507/-

(Rupees Three crore fifty-two lakh sixty-six thousand five

hundred and seven). For discharge of liability towards the

outstanding balance, the petitioner issued cheque bearing

No.096136 dated 22.02.2012 drawn on Syndicate Bank,

Vijaya College Campus, Basavanagudi, Bangalore for a

sum of Rs.13,72,000/- (Rupees Thirteen lakh seventy-two

thousand) which came to be dishonoured with the remark

as "funds insufficient".

5. In this regard, the complainant filed a private

complaint against the accused in PCR No.602/2012 under

Section 138 of the N.I.Act after following the requisite

conditions under the said provision. Subsequent to

registration of the case in PCR No.602/2012 that the

judicial Magistrate having jurisdiction took cognizance of

the offence as contemplated under Section 142 of the

N.I.Act and thereafter, C.C.No.52885/2013 came to be

registered.

6. However, keeping in view the contention of the

learned counsel for the petitioner, it is necessary to state

that though the complainant filed private complaint

against the petitioner/accused under Section 138 of the

N.I.Act, it is after following the requisite condition as

stated in the aforesaid section itself. It is the pre-

cognizance. This pre-cognizance arises only for cause of

action arose when the banking memo has been received

by the complainant/respondent has been presented the

cheque for encashment, when once the complainant has

initiated the private complaint against the accused by

following the requisite condition, which is stated in the

Section itself and based upon the sworn statement of the

complainant that the judicial Magistrate having the

jurisdiction to proceed in further by taking cognizance as

contemplated under Section 142 of the N.I.Act. But in the

instant case, subsequent to filing of the complaint, the

cognizance has been taken and proceeded in further by

registering C.C.No.52885/2013 which is pending before

the Court below. The aforesaid offence is civil in nature

till disposal of the case and subsequent to disposal of the

case, in case conviction is held it is termed as criminal in

nature. Therefore, it cannot arise for whether there are

any prima-facie materials to proceed in further for facing

of trial by the accused as at this stage of a case. But

whatever the material documents produced by the

complainant and the accused to proceed in accordance

with law by facilitating such evidence before the court

having jurisdiction to deal with the matters. But the

complaint is initiated in the year 2013 against the

accused and even after lapse of seven years, there is no

progress for disposal of the case. Whatever the material

produced by the complainant and the accused, the same

has to be tested on admission of oath and so also, subject

to cross-examination under the provisions of the Indian

Evidence Act and so also, presumption under Section 139

of the N.I.Act. Therefore, in this petition whatever the

grounds as urged by the petitioner do not hold any water

in effect for intervention of this Court under Section 482

of Cr.P.C. The power under this Section should be

exercised sparingly, carefully and with caution and only

such exercise is justifiable by tests specifically laid down

in the section itself. It is a settled principle of law that the

power under Section 482 of Cr.P.C. can be exercised only

when no other remedy is available to the litigant and no

where specific remedy is provided by the statute. But the

power being an extra ordinary one, it has to be exercised

sparingly to prevent abuse of process of law. There would

be some justification for interference only when the

complaint does not disclose any offence or if it is frivolous

and vexatious.

7. In the instant case, respondent No.2 who is

arraigned as complainant initiated the private complaint

against the accused in PCR No.602/2012 for the offence

punishable under Section 138 of the N.I.Act for bouncing

of a cheque. The cheque is an instrument and this

document has to be subjected to scrutiny by the Court

having jurisdiction and to arrive at a proper conclusion by

testing the materials on admission of oath. Therefore, it is

said that mere because issuing process and taking

cognizance which is a judicial action by the judicial

Magistrate having the power and the domain vested with

the Court alone, there is no substance in the contention

taken by the petitioner's counsel seeking intervention of

this court under Section 482 of Cr.P.C. If the power is to

be exercised, the gravamen of the complainant and

equally the accused would be the sufferers. Both the

complainant and accused are the gravamen of the

allegation made in the private complaint, that too be

under Section 138 of the N.I.Act.

8. In the instant case, it is relevant to refer the

judgment rendered by the Hon'ble Supreme Court in

(2019) 16 SCC 83 (Shree Daneshwari Traders vs. Sanjay

Jain and another) has extensively held relating to the

scope of Section 139 of the N.I.Act. It is held as under:

"Sections.139 and 138 - Dishonour of cheque - Presumption under S.139 - Rebuttal of - Defence that subject cheques were issued as security towards goods supplied for which payment was subsequently made by cash - Held, could not be established, as some purchases were paid for in cash and others by cheque - Evidence produced by complainant was sufficient to raise presumption under S.139 in respect of subject cheques, which respondent accused were unable to rebut- Hence, acquittal reversed."

9. Therefore, the rebuttal of statutory presumption

and so also, the evidence has to be adduced by the

complainant in order to establish the case against the

accused by facilitating the evidence. But the domain

vested with the Court could have raised presumption

under Section 139 of N.I.Act, it is only based upon the

evidence adduced by the complainant/respondent and

similarly petitioner/accused. Therefore, in terms of the

aforesaid reasons and findings, there are no justifiable

reasons for intervention under Section 482 of Cr.P.C.

Accordingly, I proceed to pass the following:

ORDER