Karnataka High Court
Pradeep Kumar Pandey vs Shankarlal Choudary on 11 January, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
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CRL.P No. 4745 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 4745 OF 2023
BETWEEN:
1. PRADEEP KUMAR PANDEY,
S/O DEVENDRANATH PANDEY,
AGED ABOUT 49 YEARS,
R/AT GUNDRI, RAI CHOWK,
CHAPRA SARAN,
BIHAR - 841 801.
2. S. KALICHARAN
S/O K. SWARNAM,
AGED ABOUT 48 YEARS,
RA/T 161/2, 1ST FLOOR, 3RD MAIN,
BETWEEN 7TH AND 8TH CROSS,
CHAMARAJPET,
BANGALORE - 560 018.
...PETITIONERS
Digitally signed by
VEDAVATHI A K (BY SRI. K. RAM SINGH, ADVOCATE)
Location: High
Court of Karnataka AND:
1. SHANKARLAL CHOUDARY
S/O MAHARAM,
PROP: RISHAB INTERNATIONAL,
NO.1099/13,
GROUND FLOOR,
SPA PLAZA,OTC ROAD,
BANGALORE - 560 002.
...RESPONDENT
(BY SRI. S. SHIVA KUMAR, ADVOCATE AND
SRI. S. SRINIVASAMURTHY, ADVOCATE FOR R2)
-2-
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CRL.P No. 4745 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDING
AGAINST THE PETITIONER IN C.C.NO.9488/2018 FILED BY
RESPONDENT FOR THE OFFENCE P/U/S.138 OF NI ACT
PENDING ON THE FILE OF THE XIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE BENGALURU.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition filed by the petitioner/accused under Section
482 of Cr.P.C., for quashing this criminal proceedings in
C.C.No.9488/2018 pending on the file of XIII Additional CMM
Bengaluru for the offence punishable under Section 138 of NI
Act.
2. Heard the learned counsel for petitioners and learned
counsel for respondent.
3. The case of the petitioner is that the respondent
No.2 filed a private complaint under Section 200 of Cr.P.C.,
read with 138 of NI Act, for alleged to have been issued the
cheque by the petitioner, which was dis-honoured for want of
funds. The trial court took the cognizance and summons was
issued. The petitioner appeared before the court and was
released on bail. The case is under trial. At this stage, the
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petitioner approached this court by challenging, taking of the
cognizance by the trial court.
4. Learned counsel for petitioner contended that the very
document relied by the complainant/respondent is copy of the
cheque. The original cheque is not been produced and marked
before the Court. Hence, without original cheque, the
complainant cannot take into consideration for taking
cognizance. The trial court committed error in taking
cognizance and issuing process against petitioner. Therefore,
criminal proceedings required to be quashed.
5. Per contra learned counsel for respondent objected
the petition, mainly on the ground, the trial is in fag end and
posted for arguments. However, on recalling petition filed by
the respondent, the case is posted for leading further evidence
of P.W.1 and hence prayed for dismissing the petition.
6. Having heard the arguments and perused the records,
it reveals there was business transaction between both
complainant and accused, both are companies and to discharge
the liability, the petitioner company issued the cheque which
was dishonored. Further contended, when the cheque was
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returned through courier service, the accused, with the help of
some staff of respondent, took the original cheque and torn it.
Therefore, complaint also filed before police for the offence
punishable under sections 380 and 201 of IPC. The
complainant already examined the bankers and adduced the
secondary evidence. The evidence of the complainant is
already completed and accused counsel also cross examined
the complainant. But no cross examination is done on the
evidence of PW2/the bank manager. The accused also was
examined as D.W.1. Subsequently, various applications were
filed which are all allowed and reserved by the trial court.
Those are not challenged before the appellate courts.
However, matter was posted for final arguments and the
respondent filed application for recalling P.W.1., which was
allowed by the trial court and matter is posted for further
examination chief of the complainant/witness. On perusal of
entire documents, and the order sheet, it reveals, the
complaint is pertaining to the 2018. The Trial Court took the
cognizance as on 05.04.2018. Subsequently, the petitioner
was arrested and released on bail. Plea was recorded and
thereafter both side evidence was lead and it was concluded.
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The petitioner also filed an application under Section 65 and
65A of the Indian Evidence Act, which also came to be
dismissed, which was not challenged. Even the accused also
filed another application under Section 311 Cr.P.C. for recalling
witness which was also dismissed. The complainant also field
application for recalling witnesses, which was allowed. These
orders were not challenged by the learned counsel for the
petitioner but after conclusion of 5 years, in the fag end of the
trial, the petitioner approached this court for quashing the
cognizance taken by the Trial Court, only on the ground, the
cheque was not original and it was a photo copy. This court
cannot appreciate the evidence which is adduced before the
Trial Court, either oral or documentary evidence. The
petitioner can take the defense in the trial of the case. The
criminal case registered by the police against the petitioner said
to be ended in acquittal However, when the evidence was
completed by both the parties. The Trial Court is left with only
appreciating the evidence and pass the judgment. At this
stage, this court if expressed any opinion regarding merits of
the case, it will definitely prejudice the case of the parties.
Therefore, I am of the view, when the petitioner has not
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approached this court at first instance and when cognizance
was taken but the matter is in the fag end, he cannot challenge
the same. Therefore, I am of the view, it is not a fit case for
interfering with the orders of taking cognizance. Hence, the
petition is devoid of merits.
Accordingly, this petition is hereby dismissed.
Sd/-
JUDGE
AKV
CT:SK
