Smt. Chandrika Raj T vs Mr.E.Mohan Rao
2021 Latest Caselaw 1794 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 22ND DAY OF MARCH, 2021

                          BEFORE

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

              CRIMINAL PETITION NO.6381/2020

BETWEEN:

1.     SMT. CHANDRIKA RAJ T,
       AGED ABOUT 35 YEARS,
       W/O SATHISH KANNAN.

2.     SRI SATHISH KANNAN,
       AGE ABOUT 40 YEARS ,
       H/O CHANDRIKA RAJ T.

       BOTH ARE RESIDING AT NO.634,
       3RD MAIN ROAD,
       BHARATH HOUSING SOCIETY,
       PATALAMMA TEMPLE BACK SIDE,
       UTTARAHALLI,
       BENGALURU - 560061.                 ... PETITIONERS

              (BY SRI NAGARAJ A.C., ADVOCATE)

AND:

MR. E. MOHAN RAO,
S/O ETHIRAJALU NAIDU,
AGED ABOUT 54 YEARS,
RESIDING AT NO.156,
C AND D BEML LAYOUT,
SEVENTH STAGE, 1ST PHASE,
MYLSANDRA, BENGALURU - 560059.             ... RESPONDENT

              (BY SRI VIJAY KUMAR, ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ORDER DATED 27.02.2019
PASSED BY HON'BLE XVI ACMM AT BENGALURU IN PCR
NO.2420/2019 (IN C.C.NO.5307/2019) AS PER ANNEXURE-A
AGAINST THE FIRST PETITIONER HEREIN.

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

                              ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the order dated 27.02.2019 passed by the

Hon'ble XVI ACMM, Bengaluru in PCR No.2520/2019

subsequently numbered as C.C.No.5307/2019 as against

petitioner No.1 and grant such other relief as deems fit in the

circumstances of the case.

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

has filed a private complaint under Section 200 of Cr.P.C.

invoking the offence under Section 138 of the Negotiable

Instruments Act ('NI Act' for short) making the allegation against

the petitioners herein that both of them had approached the

respondent and availed an amount of Rs.6,00,000/- and agreed

to pay the interest periodically and subsequently issued the

cheque and the same was bounced. Hence, private complaint

was filed. The learned Magistrate recorded the statement of

P.W.1 and also marked the documents Exs.P.1 to 13 and on

perusal of the original complaint and the documents produced

along with the complaint and the sworn statement of the

complainant, satisfied that the complainant has made out prima

facie case to proceed against the accused for the offence under

Section 138 of the NI Act and cognizance was taken and issued

process against the petitioners herein.

3. The learned counsel for the petitioners would

vehemently contend that the cheque is issued by petitioner No.2

and petitioner No.1 has not signed the cheque. Hence, the

issuance of process against petitioner No.1 is bad in law. The

learned counsel would contend that when petitioner No.1 has not

signed the cheque, there cannot be any 138 proceedings against

petitioner No.1 and hence it requires interference of this Court.

4. Per contra, the learned counsel for the respondent

would vehemently contend that before filing of the case, notice

was issued and both the petitioners herein have given the reply

admitting that an amount of Rs.2,00,000/- is payable and

disputed the entire cheque amount. When the petitioners have

admitted the liability in the reply notice, there cannot be any

quashing of the proceedings against petitioner No.1. The

learned counsel would contend that in the complaint, specific

averments are made against the petitioners herein that both of

them had approached the complainant and requested the

complainant to advance the said amount and accordingly both of

them have received the amount and they have committed

default in payment of the said amount and notice was also

issued and reply was given. The cause of action was arisen

against petitioner Nos.1 and 2 and now they cannot contend that

there cannot be any proceedings against petitioner No.1 herein.

The learned counsel would contend that when specific allegations

are made in the complaint and in the reply when both of them

have admitted the liability and issuance of cheque, it is a matter

of trial. Now the case is set down for cross-examination of

P.W.1. When the matter is set down for cross-examination of

P.W.1, the petitioners have approached this Court. Hence, the

same has to be dismissed.

5. In reply to the arguments of the learned counsel for

the respondent, the learned counsel for the petitioners relied

upon the judgment of the Apex Court in the case of MRS.

APARNA A. SHAH v. M/S. SHETH DEVELOPERS PVT. LTD.

AND ANOTHER reported in 2013 AIR SCW 4161, wherein it is

held that drawer of cheque alone can be prosecuted. The

cheque issued by husband of appellant from their joint account,

the appellant is not a drawer of cheque as she has not signed

the same. Criminal proceedings against the appellant quashed.

6. The learned counsel also relied upon the unreported

judgment of this Court passed in Crl.P.No.8157/2014 dated

13.01.2015, wherein this Court held that the petitioner cannot

prosecute the respondent for an offence punishable under

Section 138 of the NI Act for dishonour of cheque alleged to

have been issued by her husband. There are no reasons to

interfere with the impugned order.

7. Having heard the learned counsel for the petitioners

and the learned counsel for the respondent and also on perusal

of the complaint, specific allegation is made against the

petitioners herein that they were in financial constraints and

both of them have requested the complainant for advancing of

Rs.6,00,000/- to meet their urgent business requirements. The

petitioners herein have made an express promise and assurance

to the complainant that the above said loan amount would be

returned within a period of three months and also voluntarily

agreed to pay the interest at the rate of 1.5% per month. It is

also an allegation that the petitioners voluntarily deposited the

interest amount in the complainant's bank account for few

months and thereafter they have not made the payment and on

request they have issued the cheque and the same was

dishonoured. On perusal of the complaint, a specific allegation is

made against the petitioners that they had approached the

complainant and took the amount of Rs.6,00,000/- and paid the

interest. The main contention of the learned counsel for the

petitioners before this Court is that the cheque is issued only by

the husband and not by petitioner No.1. Hence, there cannot be

any proceedings against petitioner No.1 herein.

8. The learned counsel for the respondent mainly relies

upon the reply notice given by the petitioners herein. When the

notice was issued against both the petitioners and when they

have given joint reply and in their reply they have categorically

admitted that they are liable to pay an amount of Rs.2,00,000/-

and not Rs.6,00,000/- as claimed in the notice. When the

specific allegations are made in the complaint and also in the

notice issued against the petitioners and in paragraph No.8 of

the reply notice, both of them have admitted the liability to the

extent of Rs.2,00,000/- and not Rs.6,00,000/-. When the

specific averment is made in the reply notice admitting the

liability by both the petitioners and though they are husband and

wife, the very contention of the petitioners that the cheque has

been issued only by respondent No.2 i.e., husband and there

cannot be any criminal proceedings against petitioner No.1

cannot be accepted.

9. The factual matrix of the case has to be looked into

and also the principles laid down by the Apex Court in the

judgment in the case of Mrs. Aparna A. Shah (supra) and this

Court has to distinguish the principles laid down in the judgment.

In the case on hand, there is an admission on the part of the

petitioners in the reply notice that they were liable to pay only

an amount of Rs.2,00,000/-. Whether they are liable to pay an

amount of Rs.2,00,000/- or Rs.6,00,000/- is a matter of trial and

the same has to be considered after considering the material

available on record after conducting the trial. Hence, I do not

find any merit in the case to quash the proceedings initiated

against the petitioners herein and the principles laid down by the

Apex Court in the judgment in the case of Mrs. Aparna A. Shah

(supra), is not applicable to the facts of the case in view of the

specific admission made by both the petitioners in the reply

notice and specific averments made in the complaint that both of

them availed the amount and agreed to repay.

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

following:

ORDER

The petition is rejected.

Sd/-

JUDGE

MD