08 Jan 2121

The High Court must exercise its power under Section 482 of Code of Criminal Procedure, 1973 when it is convinced from the material on record that allowing the proceedings to continue would be an abuse of process of the Court - Karnataka High Court

Case : Sri T. Karthik Raja v. Sri V.M. Prabhakar Criminal appeal No. 578 of 2017

Court : Karnataka High Court

Bench : K. Somashekar

Decided on : 08 Jan 2121

Relevant Statutes

Sections 138, 139 and 141 of Negotiable Instruments Act, 1881

Section 482 of Code of Criminal Procedure, 1973.

Brief Facts and Procedural History

1. The complainant is a  reputed grower and trader and merchant of quality green ginger at Kudige,  The accused came to Kudige and made a deal with the complainant and also purchasing the green ginger daily which he further transport the same as per his own costs and also assured the complainant that the RMC invoices, Bills, permits would be the responsibility of the accused. The accused had come to Kudige and purchased green ginger of ‘Rigodi’  variety at a specified rate for each bag and for the payment and The accused issued a cheque dated  29.2.2016 which was drawn on Bank of Baroda in favour of the complainant and informed him that said cheque for Rs.15,00,000 would be honoured by the said Bank.

2. The Complainant received a notice dated 13.3.2016  from the accused in which he was making false statements and demands to him to return back the cheque from Bank of  Baroda as it was allegedly given as a PDC cheque. Afterwards, he received another notice dated  15.3.2016 from the accused in which he claims that the accused had been making payments through the Canara Bank account of the complainant and as well as by cash on various occasions on an account basis. The accused had allegedly requested the complainant to submit his bills supported by RMC permits in the name of the accused. Which the complainant failed to accept.

3. The complainant had alleged that a cheque was given as security at the commencement of the transaction and he states that the statements made by the accused are all false and made only to dupe the complainant of his money and also of the green ginger purchased by the accused, from the complainant.  When the complainant presented the said  cheque which was issued by the accused towards the legal  liability for encashment to Canara Bank the cheque was returned by  the said Bank, with a Return Memo of Canara Bank to the effect  ‘Payment Stopped by the which means that accused had intentionally stopped the  payment of the amount and there was no sufficient amount in the account of the accused

4. Afterwards, the complainant issued legal notice to the accused under  RPAD to him to pay the amount and further he failed to pay the amount due to the complainant despite the notice being issued. The complainant initiated a private complaint under Section 138 of Negotiable Instruments Act, 1881 r/w Section 420 of Indian Penal Code 1860. Afterwards, the Petition was filed by the petition who seeks to quash the above criminal proceeding which is pending.

The Issue of the Case

Whether the petition filed by the accused under Section 482 of Code of Criminal Procedure, 1973 can be entertained?

The Observations of the Court

1. The Honourable Karnataka High Court observed that the complainant has followed all the requisites to initiate criminal prosecution against the accused under Section 138 and 141 of Negotiable Instruments Act, 1881 and also it was within the period of limitation. The Honourable High Court observed that on the presentation of the cheque which was returned with a bank endorsement effecting to stop payment.

2. The Honourable Karnataka High Court referred to one judgment i.e. A.R. Radha Krishna vs. Dasari Deepthi and Others, ( 2019) 15 SCC 550), It was held that the inherent power of the Court under Section 482 of Code of Criminal Procedure, 1973  can be used only in Cases under Section 138 and 141 of Negotiable Instruments Act, 1881 the Act when the complaint contains some specific averments that the director was responsible for the conduct of the business or when the Court is convinced from the material on record the if the proceedings allowed it would be an abuse of process of the court.

3. The Honourable High Court stated that once the cheque is issued by the drawer under Section 138 of Negotiable Instruments Act, 1881, the presumption under Section 139 of Negotiable Instruments Act, 1881  would be attracted i.e. the cheque was received for the discharge in whole or in part of the debt or other liability. The burden is on the accused to adduce such evidence to rebut the presumption that such debt does not exist. The Honourable High Court observed that petition filed by the accused  under Section 482 of the Code of Criminal Procedure,1973 was without any justified reasons 

The Decision Held by the Court

The Honourable Karnataka High Court held that the petition filed by the accused under Section 482 of Code of Criminal Procedure, 1973 is dismissed and the trial Court is directed to take up the trial of the case in accordance with the law.

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