IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 30" DAY OF NOVEMBER 2010 BEFORE THE HO|\£'BLE MRJUSTICE C R KUMARASWAMY CRIMINAL PETITION NO.4901/2010 BETWEEN: 1 M/S DUO PROPERTIES PVT. LTD. A COMPANY REGISTERE UNDER COMPANIES ACT, * I ' .. HAVING ITS REGISTERED OFFICE "AT No.28, ULSOOR ROAD, BANGALORE 42 . * REP. BY ITS DIRECTORS, - " MR. T.PHANI MAHESH j _ ,~ A. MR. A.M.SHARATH CHANDRA. 2 SR1 TVIPHATIAIII-éaAHEfS'Pe _ S/O SRI T C A'S'%;iWA'RTH..NARAYAN AGEO"ABO,OT 45 TEARS, " DIRCTOR _ S ' M/S DUO PROPERT_IES_ (P).-~LTD., NO;28,_ULSOQR'ROAD, RANGALORE 42";-I ..... .. . » MR A... M«..,S.R'ARATH CHANDRA "S/O IA,_C.,ML|Nw1V'ENKATE GOWDA ~.A'G_E~D A~sjOu"T~,49 YEARS, DIRCTOR I' * M/"S DUO 'PROPERTIES (P) LTD., NO.28,'tJLSOOR ROAD, .. RANGA~LORE 42. PETITIONERS , '(:.3.\?*T.S'RI...*'ORAvI B. NAIK, SENIOR COUNSEL FOR W8. A K S ' __AS'SOCIATES, ADVOCATES) 5" .I' 31;' E\) AND : MR P. DAYANANDA PAI S/O LATE P NARASIMHA PAI AGEO ABOUT 64 YEARS, NO.10/1, LAKSHMINARAYANA COMPLEX, GROUND FLOOR PALACE ROAD, BANGALORE 52. RESPONDENT
(BY M/S. s MAHESH & COMPANY, AOVOCATES)
CRL.P FILED U/S.482 OF CR.P.C BY THE ADVOCATE T”
PETITIONERS PRAYING THAT THIS HON’BLE COURT”‘._M’A_Y. BE
PLEASED To QUASH THE ENTIRE”»–.PROCEE,OI*:x:.Gs’-_I,N it
C.C.NO.27’O89/O9 PENDING ON THE FILE ,Qrg=;,Tr~i_E”
BANGALORE.
THIS CRi…P IS COMING ON FO’P.,ADMIsGION Ti:iz’.s;VOAY,
COURT MADE THE FOLLOWING:
o R Dt.E;s
This f_iIedWi;nder Section 482 of
Cr.P.C. by the petitioners praying to
quash the’entire’uproACeedin’gs’in C.C. No. 27089/2009 pending
the oi<'i;<v"Agidi.TCi\é1Oi91A. A Bangalore.
learned Counsel for the petitioners
as well as learned' Counsei for the respondent.
'The primary facts of the case is as under:
Mr.P Dayananda Pai has presented a complaint
hefovrei: the XV Addi. Chief Metropolitan Magistrate, Bangalore.
ix"
3
The accused has issued a cheque bearing No. 197996 dated
26.03.2009, drawn on The Dhanaiakshmi Bank Ltd,
M.G.Road Branch, M.G.Road, Bangalore, for a sum of
Rs.2,G0,00,000/~ (Rupees Two Crore Only). The said cheque
was presented for encashment and the sarnevV.i_:w4as.
dishonoured on the ground of “insufficient funds”. _ThAe’reafte_r,f-‘.____” _
legal notice was issued on 29.08i20Q9.,.__ In ,s’pite.I’eriisiegai
notice, the accused failed to pay the ariti-.oun’_tiand’there’by”
have alleged to have committed ‘a_n”–Qffenjc’e Vpu,nish’ai3ie«~.underi
Sections 138 and 141 of Negotiabie__in*stru.rfnents”Act, 1881.
4. It is the contentirogn. er }si:i.”ReL\jzit’g”ee_i\iaii<, learned
Senior Coun_sei– on<b'e*ha!f' of the petitioners that the
order sheet d"aet_eid has not been signed by the
Viea'rnedv.»«i3ddii*. CMii4",'—-V:B_a_nga|ore. He further submits that
co.gniaa-nice..:_vta}<eVr1'»__by the learned Magistrate is without
vappitication The cheque has not been presented
within monthxs from the date of handing over of the cheque
vtottthe ciompvitainant. The attention of this Court was invited to
_Se-=:ticgnt'1"A38(a) of the Negotiable Instruments Act.
Vex
4
5. Learned Counsel for the respondent relies on the
ruling in the case of Surendra Singh and Others Vs State of
Uttar Pradesh reported in AIR 1954 SC 194, wherein at
para 14 of the said ruling reads as under:
“:4. As soon as the judgment is delivered}ft’-«.V.”‘.
that becomes the operative pronouncement of3V_th’e” -1-
Court. The law then provides for the m_a.nn_er.Vyihri-Ii’ ._
which it is to be authenticated andtnade-«.ce;i’t.ai’ii4._
The rules regarding this differ 1but7..’th’ey not,
form the essence of the nnatter and if’ tlie’reoi._’is.._VV
irregularity in carrying therh”‘~V..out_Vit
Thus, if a judgment tia’i3.pensi’n’otht_j:oVVbe._’signed”a’nd
is inadvertently acted the
proceedings:iivf,;on:§Vet;ii:en.t’ on’._””it”Vwou|d be valid
because the be shown to have
been vaiid_ity_de’!iv’eredi£’;v4oVnld stand good despite
defjctpts. in the’ irnode of its subsequent
fi”~ . . . . .
‘ authentication.
‘Vi-‘l.e ai’sVo”–«.reli.esf”on another ruling in the case of Ashok
‘Yeshwa’rit véiadahve Vs Surendra Madhavrao Nighojakar
a.r3=o4the’r’Jreported in (2001) 3 scc 726, in Head Notes
A..ian’¢–:a,”i’t is held that:
“A. Six months’ period ‘has to be
calculated for purpose of proviso (a) from the
.§
«V-”
date mentioned on the face of cheque and not
from any eariier date when drawer actuatty gave
cheque to drawee — High Court rightly dismisse_dfi”-.ii’~
appeHant–drawer’s appeai against issue of pro_ce’ss–.’,j_~–._._i 5 .;. é
against him – Words and Phrases –~ “post__»dajtevdV’_i.’V. %
cheque”.
8. Post dated cheque, remains a_b’i;il:’of”
exchange tiil the date writte-n’L:”o.n the face,
on that date it becomes a chAequ:’e._
And it is fu rther
“For p’ro’s~e:cutin1g a ~~pe’rso’nCf’~fo.F_._.fan offence
under Section. V1″38′..__of “the “~i\EVe’g¥_o’ti_a brie Instruments
Act itVp,is…i.nAe”iszi_taii-fie that is presented to
the t}anl<__e_rx ofjsix months from the
date onuwh%iVch or within the period of
its vatidityswhicheV~er*..i's eariier. When a post
datijed ic:heque"i-spyvritten or drawn, it is only a bill
'A «ofiiiexchfanijez and so tong the sameuremains a bilt
"of 'Vexch-an"g;%e,_the provisions of Section 138 are not
.'app«|icabIe'i_to* the said instrument. The post dated
chueque becomes a cheque within the meaning of
nSection: 138 of the Act on the date which is
'written thereon and the 6 months' period has to
Vfbe reckoned for the purposes of proviso (a) to
Section 138 of the Act from the said date."
Q?/,
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6. The learned counsel for respondent relies on
Section 118 of the Negotiable Instruments Act -»- Presumptions
as to negotiable instruments sub clause (b) reads as,,i.ind»eir’;s.4f 3
(b) as to date ~ that every negot’i~a:bl’e’_i.’~.xi”,
instrument bearing a date was made-or dyrawnjon it
such date.”
7. It is the contention of’t’h.e”learned.V_S’en’aior.Counsel
that since the ordersheet date_d notsigned, the
proceedings has to be quashed’)
8. Section follows:
,,.’.’4.6S}’*F_i”nda1n_g_ siente-.nc,e,~§’when reversible
by reasonof’e’rro_r,eomis’s.i.on or irregularity.
provisions hereinbefore
corhjtained, wn”o..,_Vfiln’ding, sentence or order passed
– ;’aa.,”iCoi;irt ofcornpetent jurisdiction shall be
‘_ “altered by a Court of appeal,
revision on account of any error,
olmission-.«-“”or irregularity in the complaint,
AA sumimoihs, warrant, proclamation, order,
.,j:udjgment or other proceedings before or during
Attrial or in any inquiry or other proceedings under
“this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion
M if
7
of that Court, a failure ofjustice has in fact been
occasioned thereby.
(2) In determining whether any error,
omission or irregularity in any proceeding under
this Code, or any error, or irregularity in any
sanction for the prosecution has occasioned
failure of justice, the Court shall have regar.dV_:é.to”5.””‘—dd ‘V’
the fact whether the objection could and ._
have been raised at an earlierWVs”ta~g_e’««._in’
groceedings.”
In the case of K M Mathew ‘KA Ab,r&3,han’3
Others in cr/.A./vo. 701/1998, gsoénka” ti’/s ,r>a;lam
Sambhav ; Ja:’n ,a’r;ic_:’_.Anotiéer..___in_ cr/.A.No.849/2002, Han’
Narafn Nigamél . Bihar and Others in
Cr/.A.No._§848,/2002–reported in (2002) 5 scc 570 at para
2’1_reads_as_ttn,d-eVr:~.,
A A a grave illegality is committed,
the su.__;)erio’rA courts should not interfere. They
shou1’d,Vrallow the Court which is seized of the
Arriatter to go on with it. There is always an
‘appellate Court to correct the errors. One should
‘V —–E:<eep in mind the principle behind Section 465
Cr.P.C. Any and every irregularity or infraction
3, ,:
3,; )
t..,,.«’
8
of a procedurai provision cannot constitute a
ground for interference by a superior Court
unless such irreguiarity or infraction has caused
irreparable prejudice to the party and requires to
be correct at that stage tends to defeat the ends
of justice instead of serving those ends.
should not be that a man with enough mean_s;’_”i’sif-f.,’~v–.’..f’ » if
able to keep the law at bay. That wouIdWm”ean~ C
the failure of the very system.”
10. In the decision of Mohamed’~Haya;f.’n,,!’97tJffaV’ii/S”V”g
Emperor reported in AIR 1930 _’Vf’V<"c."ii7'_L',ir<_3onV"}'..7':_,"'thez:i;lon'ble
High Court of Rangoon heid i C V
.»(A) Criminal M.
Omission_ before passing
sentence’ishouldi’j_jn.ot«.._:v-i»ti’a~te trial unless it
occasionsi–failure-__of._jLis~tice ~» Criminal P.C.,
s.5;¥3:7. ” if
it iswdesirable that Magistrates
express provisions of the iaw,
to write a judgment before
prohou-nci’ri’g a sentence should not necessarily
vitiate’=-the trial, unless such omission has in
fa_ct:.’occasioned a failure ofjustice: 14 All. 242
and 27 Mad. 237, not F-“o|l.; 23 cai.5o2, Rei.on.
ix”
(B) Criminal P.C., S 367 –~ Omission to
sign judgment is mere irregularity curable by
Criminal P.C., S.537.
Where a Magistrate prepares a judgme_n;’t”‘~ C’
but does not sign it, such omission to sign’_ti1e C
judgment amounts to a me:re””ri–r.rgegé,:|arity7[
I!
OH.
11- Applying the .lsri,T’cipllres~uiI’i*iin'”down above
mentioned ruling, in my order sheet has
not been signed,.~:i;t *1-is under the
procedural lawf.” V__ii{‘ip’i|A;jl’,/:»r*.o_t”cause in failure of
justice. ‘hast-‘not been raised by the
accused inlithe first time, in this Court this
objection hasxibeern Vra_isAed”.’Af?herefore, the contention of the
:_.-“i’ea_rned_j’3¥Sen’ior’ Cou”r’isel.__.that the order sheet has not been
isi-g’ned” a.ndv..tl”sieVr=e:fore, the proceedings have to be quashed has
no forceéand tvhesame cannot be accepted.
.. ;1_2..’=-~The next contention urged by learned Senior
4’_’CouVr§seil”«is that cognizance taken by learned magistrate is
.:’_’wit.hout application of mind and therefore it is bad in law.
€13:
curable by 5.537: A.I.R. 1925’Ali;§f299,iir».Retall
ll)
13. In this regard, the impugned order reads as
unden
“Heard the learned Counsel for the
complainant. Perused the original complaint and
documents produced alongwith the complaint and
the sworn statement of the complainant. On
basis of the material available on record. ~’-~
satisfied that the complainant has made….odr.Vv’a.l.::’ _
primafacie case for an offence pu”nish’ab.Ieau/.5
of the N I Act, Hence, I procéedhto: pa’ss:%”the,. ”
following: _
oRoeg A _ :
Register a criminal_ case”a’gvaainV§t’~t,he atltvciisévd
in Register No.III for4″an”oi7fe}icetlipafinigsralable u/s
138 oftlheiflegotnifalblejTnstrumvelnvts Act, 1881, and
issue:”‘sum_m’cns’:V:to:%gti1e’i’ra:c’cpsed by RPAD for the
aforesaid, offen<:eK: .and postage paid.
Returnatflexby.t8/12fO9."
“careful perusal of impugned order, it is clear
that~-the’ llégiatgéistrate has perused the original complaint
hand doclumentslflEproduced alongwith the complaint and also
Istatement and on the basis of the materials available
on ‘recs-rd”, he was satisfied that there was prima facie case
.:agVa.in–st the petitioner–accused. The learned Magistrate has
pr
focused his attention to the averment made in the complaint.
Therefore, it is difficult to say that the learned Magistrate___has
not applied his mind. Therefore, the contention raised.ji3$fj««t_hveV
learned Senior Counsel that the cognizance taken:-.is’
law has no force.
15. The last contention urged byhlthe |ea.r’l.:e(:l “Se’riio~r’VF,
Counsel for petitioner is that not “been
presented within 6 monthsifrom the’Vdiate.,’Vo’f_handinigover the
cheque to the complainant.__aiisof:inrv~itedI’V_’a_ttention of this
Court to Section of*.l\lego’tia’bl:e’ I-nstrurnent Act.
16. {VInlVtAhi’s.7rega.rd,_lea’_rned Counsel for the respondent
has relied on the case of Ashok Yeshwant
Badave’v’s_.Suurehd’ra”‘ rnadhavrao Nighojakar reported in
wherein the Hon’ble Supreme Court has
helléi; if
ll,.”:’Si>«<f'V'months' period has to be calculated for
Ag purposes of proviso (a) from the date mentioned
,orij_«the face of cheque and not from any earlier
date when drawer actually gave cheque to
' drawee."
Further, Section 118(b) of the Negotiable Instruments
Act as to date — that every negotiabie instrument bearijrigga
date was made or drawn on such date. Six monthsg.has
calculated from the date mentioned in the chequ.e_.”:”Tiheirefore;
it is difficult to accept the contentionlhioithey ‘i’ear’n.e:(:j:j’.SgVn’ioVr’
Counsel that the cheque has not beenp–resente’d.:’withiiiia.it
period of six months from the date”‘on”iwhich’it.Vis”‘dir-iavrin.
17. There is no can be applied
to quash the proceéd.in9s;i”‘Eaé’ti ¢a$AeVg’1Ariagfthlérerore to be
considered on decision has to
be taken ::the_ not. The learned
Magistrateujas to the averments made
in the comp’lainit.g cognizance of the offence.
V4.Ay_ermerit vvmade in»the___.compiaint constitutes the offence
‘a’l.|_1evge’d~.__ AA_ppiiyi.A:n’g___the principle iaici down in the decisions
V cite’d’*su*praWi;e”:é.. SCC 726 and also not signing of the
order shlleethbeirig an curable irregularity, I am of the opinion
that it’is_not rarest of rare case where this Court can exercise
_’i~n’–her§entApower to quash the proceedings.
18. In that view of the matter, I pass the foiiowing:
ORDER
This Criminal Petition is dismissed.
*bgn/..