Karnataka High Court
Pamapapathi S/O. Somappa vs Shivappa S/O Sangappa on 6 June, 2024
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NC: 2024:KHC-D:7584
CRL.P No. 101294 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO.101294 OF 2022 (482)
BETWEEN:
PAMAPAPATHI S/O. SOMAPPA MUDDALAGUNDI,
AGE: 48 YEARS, OCC: ADVOCATE,
R/O. PATTANASHETTI, SAW MILL, KUSTAGI,
TQ. KUSTAGI, DIST. KOPPAL-583277.
...PETITIONER
(BY SMT. YALAGI KAVYA SHIVAPPA. ADV. FOR
SRI. H. N. GULARADDI, ADVOCATE)
AND:
SHIVAPPA S/O. SANGAPPA TALIKOTI,
AGE: 66 YEARS, OCC: AGRICULTURE,
Digitally signed R/O. TAVARAGERA, TQ. KUSTAGI,
by MANJANNA
E DIST. KOPPAL-584131.
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER OF COGNIZANCE AND
ISSUANCE OF SUMMONS ORDER DATED 02.07.2018 PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, KUSTAGI IN CC NO.801/2018,
FOR THE OFFENCES PUNISHABLE U/S. 138 OF N.I. ACT, PRODUCED
AT ANNEXURE-A.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 101294 of 2022
ORDER
The petitioner being an accused in C.C.No.801/2018 on
the file of Civil Judge & JMFC, Kustagi, Koppal District, has
sought to quash the proceedings initiated under Section 138
of the Negotiable Instrument Act, 1881.
2. The legal point involved in this petition is;
"Whether the dishonor of four cheques issued
by the petitioner to the respondent in relation to
paying balance sale consideration which the later
cannot recovered on account of expiry of limitation
period gives rise to cause of action for initiating
criminal action under Section 138 of the Negotiable
Instrument Act?"
3. The necessary facts are that, the respondent filed
suit for specific performance of contract in O.S.No.555/2013
on the file of Senior Civil Judge, Kustagi. The same was
ended in compromise on 19.04.2013. As the amount was not
recovered, the respondent filed execution petition in
E.P.No.132/2015 to execute the judgment and decree. On
24.04.2015, the respondent withdrew the execution petition.
Again the respondent filed one more execution petition in
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E.P.No.14/2016. In the meanwhile, one Kanakaraddi, the
brother of accused purchased the schedule property, which is
the subject matter of O.S.No.555/2013. In the said
execution petition, accused issued four cheques for the
security purpose, on being presentation, the same were
returned with shara as "insufficient fund" in the account of
accused. Therefore the respondent filed private complaint in
PCR.No.139/2017 against the petitioner/accused. Now taking
exception to the same, the accused as filed this petition
contending that the cheques were issued for security
purpose only.
4. In the case on hand, the complainant had filed
original suit in O.S.No.555/2013 for the relief of specific
performance of contract and the same was ended in
compromise and later two execution petitions were filed and
in second execution petition, the accused issued four
cheques in favour of the complainant/respondent on
27.02.2017 as security purpose. But in-spite of repeated
demands made by the claimant, the accused did not repay
the amount. Hence, the complainant presented the said
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cheques for encashment on 16.09.2017 and the same were
returned with shara "insufficient fund" in the account of
accused as per the memo dated 26.09.2017. In fact, the
agreement of sale in respect of schedule property is a
contract in writing that came into existence according to
Section 25(3) of the Indian Contract Act. It was in this
connection that the cheques in question were issued and
when they were dishonored, respondent has to initiate action
under Section 138 of Negotiable Instrument Act.
5. In this case the petitioner/accused disputed the
question fact that, whether he has issued four cheques in
favour of complainant in relation to pay balance sale
consideration, which cannot be recovered on account of
expiry of limitation period, which cannot be adjudicated upon
by this Court under Section 482 of Cr.P.C. At this juncture,
only prima facie case is to be seen in view of ratio laid down
in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra and others1.
AIR 2021 SC 1918
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6. Therefore, the cheques were issued in connection
with legally enforceable debt. Therefore, there is no merit in
the contention of the appellant/accused. Accordingly, the
petition filed by accused/petitioner under Section 482 of
Cr.P.C. is dismissed.
Sd/-
JUDGE
EM-ct-an
