IN THE HIGH COURT OP KARNATAKA, EANOALORE
DATED THIS THE 30" DAY OF NOVEMBER 2010
BEFORE
THE HON'BLE MRJUSTICE C R KUMARASWAMY
CRIMINAL PETETION NO.4898/2010
BETWEEN:
1 M/S DUO PROPERTIES PVT. LTD.
A COMPANY REGISTERE UNDER
COMPANIES ACT, g
HAVING ITS REGISTERED OFFICE AT NZOJZS, "
ULSOOR ROAD, BANGALORE 4.2 I
REP. BY ITS DIRECTORS ' "
MR. T.PHANI MAHESH
MR. A.M.SHARATH CHANDRA.
2 SRI T PHA'NI,IMAHE:S'H_ _
S/O SRI ._T-- CVA'43%-1WART'H_i\EA«F{AYAN
AGEDAB-OUT 4'S'YEARE'»_,
DIRCTOR I V ' ,
M/S DUO 'PROPERTIES ('P3 LTD.,
NO.'::8, ULSO-O_R'R'OAD,
E+A%NGAi_O_RE 42'; ..... .. »
<3' 'MR M 'SHARATH CHANDRA
' S,/O AB Mu rm/.EN KATE GOWDA
= AGED AE'5O.u"I: 49 YEARS,
DIRCTOR" '
Mrs DUOPROPERTIES (P) LTD,
NO.'2,8,'i~ULSOOR ROAD,
I BANGALORE 424 PETITIONERS
'_'(EEY"I._VS'RI;" RAVI B. NAIK, SENIOR COUNSEL FOR W5. A K S
V' .___ASSOCIATES, ADVOCATES)
/
. J,
{P
[Q
ANS :
MR P. DAYANANDA PAI
s/O LATE P NARASIMHA PAI
AGED ABOUT 64 YEARS,
NO.10/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR
PALACE ROAD,
BANGALORE 52. . RESPONDENT
(BY M/S. S MAHESH & COMPANY, ADVOCATES)
CRL.R FILED U/S.482 OF CR.P.C BY THE ADVOCATE Tj-fO.R’TH’E_j
PETITIONERS PRAYING THAT THIS HONjsLE COURTv,M’AYgEsE
PLEASED TO QUASH THE ENTIRE “”PRQCE.;EDIi\:«~23S”~*IN’.
C.C.NO.27o87/09 PENDING ON THE FILE:–Oi.-“9 THE-.>'<v';AjC.MrA,~
BANGALORE. V _ _ V . _ _
THIS CRL.P IS COMING ON EO'R._VADMIssxON 'r'H:3 'E1Ay,..THE _ w
COURT MADE THE .FOLLC)W'IE\lG:
ORD”R
_filed under Section 482 of
Cr.P.C. by the”learh.edAZ.I:.{2ntJ’n_sel’for the petitioners praying to
quash the-.e_ntire Dro’ceedihgs’.’in CO. No. 27087/2009 pending
‘fVo.o”thel’fil:e X\:’~Add|.AC”i9/i’i91, Bangalore.
V”I’A–hgja\j’eVV’vheard learned Counsel for the petitioners
as well as lvearoed Counsel for the respondent.
The primary facts of the Case is as under:
Ohe Mr.P Dayananda Pai has presented a complaint
it “‘~bVefore the XV Addl. Chief Metropolitan Magistrate, Bangalore.
G /
The accused has issued a cheque bearing No.197998 dated
26.02.2009, drawn on The Dhanaiakshmi Bank
M.G.Road Branch, M.G.Road, Bangaiore, for
Rs.2,00,00,E)OD/~ (Rupees Two Crore Only). The’es’a.i.d’1A¢r.e4que’
I.
was presented for encashment ;and_”pVh’e_g
ciishonoureci on the ground of “insufficie’nt_efunds’T..ev51ThVer’eafte’r,
iegal notice was issued on Inluspiiteflfofwlegal
notice, the accused failed ‘to’pay.thie_’ainfi.ouVnt.and thereby they
have aileged to have comrnitted anVoffen.cé-efipunishabie under
Sections 138 arids_”14%i§fj;.c:i’t)”if hlegotia’i3ie”I:nstrt:.mVents Act, 1881.
4. ‘of..c._Si’i.Ravi B Naik, learned
Senior Counsel’ of the petitioners that the
order sheet ‘dated has not been signed by the
V_.–~iwearneVd’3,Ad__diTVvCI\iii\Ii–,i..[3?.§mga|ore. He further submits that
Tc-ogngi’2’a.nce.__”taker:.._by the learned Magistrate is without
appii’ca’tiion.V The cheque has not been presented
é within six.. rhonths from the date of handing over of the cheque
ttiij’theic–omp|ainant. The attention of this Court: was invited to
___”$’ection”138(a) of the Negotiable Instruments Act.
£6″
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:
“14. As’ soon as the judgment is de|i.?éreAd§”~1’sj”‘ A
that becomes the operative pronoAuncem.en’tv-ofthe:
Court. The law then providesjtor
which it is to be authenticated an__d”mA.adelcertair… it
The rules regarding this’ld_i:ffer but
form the essence of the ithereviis
irregularity in carr»;}:j4i>1~g them’:aiout.:’i’t..ais curable.
Thus, if a judgment not toll”bieV.signed and
is inadvertentl’-,(_ ac.tedV”:on_:’ ‘executed, the
proceleldyingiégaf, would be valid
because can be shown to have
been xraliadiity de_li’i,’ere’:(:j”;…s.iivouId stand good despite
defects ulrrr’ the .”mode of its subsequent
e.suthentication.””‘ “””
‘HeAlial.§o.,_”re.lie.s” on another ruling in the case of Ashok
Yeshwa«nt.«._’Baci’aAve l/s Surendra Madhavrao Nighojakar
mother reported in (2001) ‘3 scc 725, in Head Notes
A;.arivd”B;”it is held that:
“A. Six months’ period has to be
calculated for purpose of proviso (a) from the
sf
5
date mentioned on the face of cheque and not
from any earlier date when drawer actuaiiy gave
cheque to drawee —- High Court rightly dismissed
appeiIant~drawer’s appeai against issue of process
against him — Words and Phrases — “post dated__.___
chequefl
8. Post dated cheque, remains abili ‘V’.
exchange tiii the date written oenmtghe face”of]i+,
on that date it becomes a cheque. j;
And it is further heid’itf;-at:
“For prosecuting a pe-rson “for an” *effe.E1’ce
under Section 138 vofirjhe ‘megnovtiiaibgivegiInstruments
Act it is inevitabie that_t’he c’hei;ue’~~is’p..res’ented to
the :’ban__keAr’ikirith_i_n«.a ‘p_e”rio__d.o.i’ six months from the
date on which__’itfi’s. ‘drai2v«n~~”or within the period of
its_validii’ty ‘whViLf._he~..(e’r~.–“is eariier. When a post
da;tedi’*chequ’e’—!SVV_i(ii_ritten or drawn, it is oniy a biil
” e>€’cha_n’g.e and so long the same remains a biii
provisions of.Section 138 are not
‘i tap’piica.b’ie_to the said instrument. The post dated
checiue becomes a cheque within the meaning of
A. Section 138 of the Act on the date which is
“-written thereon and the 6 months’ period has to
be reckoned for the purposes of proviso (a) to
‘ Section 138 of the Act from the said date.”
ex
6
6. The Eearned counsel for respondent reties on
Section 118 of the Negotiable Instruments Act — Presumptions
as to negotiabie instruments sub ciause (b) reads as under:
(b) as to date — that every negotiabie_…__
instrument bearing a date was made or drawn on
such date.”
7. It is the contention of the iearned _Senio.r’C.ou.4nsei’
that since the ordersheet dated
proceedings has to be quashed. _
8. Section 465 of the Cr.’|5’§C,.,V’d’i’eadsVas ‘f’oE–iowfls:,:
“465. Finding reversiflbie
by reason ofre.rror’,,o’rnisS.i_on or irreguiarity.
(i’}…,_%%Subject,_t’o.t.he provisions hereinbefore
contained, ndfindinlg, sentence or order passed
. _byV’a*=””Co’u.rt ofvflconnpetent jurisdiction shait be
‘ reversed jaitered by a Court of appeal,
*,co–nfirn*ia.tji–oVn=Vor revision on account of any error,
o’rniss..ion*”‘ or irreguiarity in the Compiaint,
_ sgumzrndns, warrant, prociamation, order,
,jud_gment or other proceedings before or during
ttriai or in any inquiry or other proceedings under
“this Code, or’ any error, or irreguiarity in any
sanction for the prosecution, unless in the opinion
of that Court, a failure of justice has in fact been
occasioned thereby.
(2) In determining whether any
omission or irregularity in any proceeding “-u__nd,er,:
this Code, or any error, or irreglllyaritymin”vany”
sanction for the prosecution ‘h__asi_–occassi.o’rt.ed-
failure of justice, the Court.4_shall’*–ha’ve re_gs;1rdv”to
the fact whether the object-i.o’Vr:-.could»and:é;ho’ulVd'” ‘V
have been raised at anV,..e-ar’iier*–…stage’-in the
proceedings.”
9. In the ci§se’_gcf !\’i:!_ A Abraham and
Others in ‘i/ivefkw Goenka Vs Padam
SambhaV:vv_Ja_iniA inf Cr/.A.No.84 9/2002, Hari
Narain ‘ Bihar and Others in
v4,..Crl.A.bltj.848/20O2..reported in (2002) 6 scc 670 at para
C23 ‘ re’a~ds as ‘uride*r:__
a grave illegality is committed,
the :;’u’per’ior courts should not interfere. They
A, ,sho’ti.l,_r.lé:’ allow the Court which is seized of the
.,:ri9iatter to go on with it. There is always an
appellate Court to correct the errors. One should
C keep in mind the principle behind Section 465
Cr.P.C. Any and every irregularity or infraction
of a procedurai provision cannot constitute a
ground for interference by a superior Court
uniess 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.
shouid not be that a man with enough meatns
abie to keep the iaw at bay. That4wou’|’d'”rne’an'”= ”
the faiiu re of the very system.”
10. In the decision offflfioljanciecffif1’aya’tA”«1[&7–orl1a–3 Vs
Emperor reported in AIR. 1930–~–~.é}’:’i’I7§iOOf7 7’7’r-theii H0n’b|e
High Court of Rangoon heid”a’s’undé;r:i«:
“(A) 5′ cfimjinaij”%ifi}§C€Ai§55}-[355 V’ai’3«dV’V’367 ~–
Omissiongfi before passing
sentence shotuiduV_not’—utitiate triai unless it
occasionsubbfaiiutreuof’justice – Criminal P.C.,
$53k “i i
E.-jhough itvflisfdesirabie that Magistrates
‘ the express provisions of the law,
thefijjmiistsion to write a judgment before
pronou’n’c’i”ng a sentence should not necessariiy
so Vjvitiate: the trial, unless such omission has in
occasioned a faiiure of justice: 14 Ali. 242
and 27 Mad. 237, not Fo||.; 23 cai.5o2, Rei.on.
:9 I,”
VJ
9
([3) Criminal P.C., S 367 — Omission to
sign judgment is mere irregularity curabie by
Criminal P.C., S537.
Where a Magistrate prepares a judgment
but does not sign it, such omission to sign the
judgment amounts to a mere irregularity
If
on.
curable by S.537: A.I.R. 1925 Ali. 299,
11. Applying the principles laid
mentioned ruling, in my view, in case, if-,tha Vordve’ri..,:sh,eetghas
not been signed, it is a curabile-,,:ii—regu|’a’i’ity. under the
procedural law. Such om«i_sk;ion._ wgill. n’o_t». cause in failure of
justice. Forther,”j;’th.i:s§:.;o~bj’ection’ ‘h’as–‘not been raised by the
accused intthe ,_Trial first time, in this Court this
objection hasxibeern Vra._ised.’iiiiherefore, the contention of the
:_.-“Iea_rne’3,.:i’Sen,.ior_ Cou’nse.!…,t’nat the order sheet has not been
and’v.t:he,r’ei:ore., the proceedings have to be quashed has
i no forceland the same cannot be accepted.
, ,1,2…vv…*aa’he next contention urged by learned Senior
4’C,ou.nse|.i5is that cognizance taken by learned magistrate is
‘:’wit.h.out application of mind and therefore it is bad in iaw.
. W:4(
10
: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:T¥s
the sworn statement of the complainant.
basis of the material available on record. ‘V’.
satisfied that the complainant has ‘-
primafacie case for an offence
of the N I Act, Hence, I’ proceedl’-_to pas_s.A’t»he it
following: A’
0 R
Register a crirnln’a_l accused
in Register No.III for an ofvfeV3n:ce__._punishable u/s
138 ,orth’er isiegoiiitaiugimménts Act, 1881, and
issue’su’mmo_n’s:’fto:the’-accused hy’.RPAD for the
aforesaid’offencexl and postage paid.
Retu”l’nab|e by _V1’8’/12′,-’09.”
‘c’aire_’Eu| perusal of impugned order, it is clear
“that theuilearnedjfpflnagistrate has perused the original Complaint
documents produced alongwith the complaint and also
‘A .,statement and on the basis of the materials available
“a.V%”‘on_’Vre5cord, he was satisfied that there was prima facie case
ll”-against the petitionermaccused. The learned Magistrate has
z» ,_r’
*5 g/’
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 raisedloyésiéthiet V.
learned Senior Counsel that the cognizance tal__<en: isfha'd'h
law has no force.
15. The last. contention ‘d_rg~ed by» _leélrrledi..,,5enio%r
Counsel for petitioner is that pt.hx駒»v.,ci’l.eque.’ ‘has been
presented within 6 months”‘f.tom’the’dat’e[V’:a:f”lh.anding over the
cheque to the compi’ai_nan:t’;” aI’sQ:’a.i_nu.i’ted’iattention of this
Court to Section i»i3’85§f(_l:a–) of’:.i’l_eg..pti?_«’blie infstriiment Act.
16. ti;Vi.es?»v_r’eg;ta4r’d,:’:’I’ea’rned._”C’oensel for the respondent
has reliedv’A’on’~the’ case of Ashok Yeshwant
Badavejivspp nfiadhavrao Nighojakar reported in
wherein the Hon’b|e Supreme Court has
months’ period has to be calculated for
A pur’p.o_é}es of proviso (a) from the date mentioned
A_;o’n_. the face of cheque and not from any earlier
date when drawer actually gave cheque to
C d rawee.” §
1″)
1..
Further, Section 118(b) of the Negotiable Instruments
Act as to date -~« that every negotiable instrument bearing a
date was made or drawn on such date. Six months has to be
calculated from the date mentioned in the cheque. Therefore,
it is difficult to accept the contention of the |earnedj”Sef«n_io–r’
Counsel that the cheque has not been presented
period of six months from the date on which
17. There is no precise p;ri_nciple~sh’t’hat can applied
to quash the proceedings. Each’V’li’ca;’se_has’~.th’erefo.re to be
considered on its own mer:i_t’~~.and”Apthereafte’r..a decision has to
be taken to quashthe The learned
Magistrate:._’ha:sfocusedgp’l1.igs”attenti’on to the averments made
in the complaint.’ cognizance of the offence.
v4..,txvermen_tpp made V”ir.~–.. hth_eAh,comp|aint constitutes the offence
Aa.l_legVed.__ the principle laid down in the decisions
V citeds’u«p’ra.’i’:e_’;g:,._ SCC 726 and also not signing of the
order s.heet.be’ing an curable irregularity, I am of the opinion
“thatp’itiii-sh not rarest of rare case where this Court can exercise
-in*hei;epntppower to quash the proceedings.
£f;/
13
18. In that View of the matter, E pass the following:
ORDER
This Criminal Petition is dismissed.