R.K. Nagendra vs Srl B.H. Gundu Rao

Mr. Justice B.V. Pinto

This petition is filed seeking to quash the proceedings in CC No. 206/2011 pending on the file of the IV Addl Civil Judge (Jr.Dn) and JMFC Mysore.

The respondent herein filed a complaint before the JMFC Court u/s 200 of Cr.P.C. alleging that the petitioner herein has issued a Cheque bearing No.779042 dated 29.10.2010 drawn on the Corporation Bank, Kuahalnagar for Ra.8,00,000/- and when the Cheque was presented for payment on 30.10.2010, the same was dishonored for insufficient funds. Thereafter the complainant issued a notice on 04.11.3310 calling upon the petitioner to pay the cheque amount which notice is served on 06.11.2010, The accused/petitioner issued a reply on 18.21.2010 stating that there was no legally enforceable liability in so far as the complainant is concerned and that the chaque was given only as a security in connection with & transaction for sale of immovable property between the complainant and one Sri Wazeed Ali and hence he is not liable to pay the cheque amount. Being unable to secure the payment of the cheque amount, the Respondent No.2 Sled a complaint before the Court on 07.12.2010. Thereafter the Magistrate took cogaizance of the offence and after recording sworn statement of the Respondent on 22.01.2011, issued process against the petitioner. It is the order of issuing process and the continuation of the said proceedings which is challenged by the petitions in this petition.

Heard Sri G. Balakrishna. Shastry Learned counsel for the petitioner and Sri. G.V. Dayanand learned counsel for the respondent It is submitted by the learned counsel for the petitioner that the petitioner is an advocate and that there in no personal liability created in respect of the cheque issued by the petitioner towards the respondent. He has stated that an agreement of sale was entered into between the complainant/respondent and one Sri. Wazeed Ali on 30.07.2009, Since there was a tenant in the said premises which was sold by the complainant to the said Wazeed Ali, a sum of Rs.8,00,000/- was withheld and a document was crested on 30.07.2009 between the petitioner herein and the said Sri. Wazeed Ali and in this connection the petitioner had issued the cheque bearing No.779042 for Rs.8,00,000/- without mentioning the date in the said cheque. It is further submitted that even according to the documents entered into between the petitioner and the said Sri. Wazeed Ali in which the respondent is a consenting witness, it is clear that the cheque was issued as a security for the payment of Rs.8,00,000/- by Sri Wazeed Ali to the Respondent, Hence, he submits that the proceedings for an offence u/s 138 of Negotiable Instrument Act is misconceived. He has relied on the ruling reported in ILR 1998 Kar 3599 between Pepsi Foods Limited and Another Vs. Special Judicial Magistrate and others also the ruling reported in Matheson Bonsanquet Enterprises Limited Vs. K.V. Manjunatha, and submits that the proceedings u/s 138 of Kegotiable Instrument Act are an abuse of process of law. Hence it requires to be quashed.

Sri. G.V. Dayanand Learned Counsel for the respondent on the other hand submits that even subsequently the said Sri Wazeed Ali has sold the property to one Sri. M.M. Shahir on 30.07.2011 and in the said sale deed it is mentioned that the vendor has delivered and put the purcheser in full open, exclusive, free and vacant possession of the property described in the schedule and the schedule mentioned in the said sale deed is same as that mentioned in the Agreement between the Respondent No.2 and Sri. Wazeed Ali and further it is everred in the said sale deed that the purchaser had taken the possession of the full premises and hence he submits that the issuance of cheque has nothing to do with the dealing between the 2nd Respondent and Sri Wazeed Ali. It is further submitted by him that the petitioner has further issued a notice dated 04.11.2011 in which he has reiterated his responsibilities for payment of the money to Sri. Wazeed Ali Hence he submits that the petitioner had held himself due as the person who owes a sum of Rs.8,00,000/- to the respondent/complainant hence, he submits that the petition may be dismissed.

In order to decide the rival claims of the parties, this Court has calked for the LCR and I have perused the documents filed along with the complaint before the Court below. From the perusal of the complaint and other documents, it is seen that the complainant has made out the case for the offence punishable u/s 138 of Negotiable Instrument Act, The complainant has prima-facie made out the case through the sworn statement and the complaint along with the documents produced along with the complaint. The submissions made by the petitioner stating that the cheque has been issued as a security is in the form of rebuttal evidence, which the learned Magistrate has to appreciate at the time of trial. In the petition for quashing the proceedings, in the absence of any oral or admitted documentary evidence, this Court connot come to the conclusion based on the Xerox copies produced by the parties to hold the liability of either parties which is essentially the look out of the Trial Court. In that view of the matter, I am of the opinion that the petitioner has not made out any case for quashing the proceeding. Hence, this petition is liable to be dismissed and accordingly the petition is dismissed. The grounds urged in this petition are reserved for the petitioner to urge during the trial and the observations made by this Court in this order are only made for the purpose of disposal of the petition and the Trial Court shall not be carried away by the observations made herein at the time of disposal of the case on marits.