IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 19"' DAY OF' NOVEMBER, 2010
BEFORE)
THE HONBLE MR. JUSTICE o.R.KUMARAsw;-QM?' .
CRIMINAL PETITION No.4??? of? 20 £0" .
Between: 1 A A ' A
1. Smt.Manju1a
Aged about 50 years *
Wife of late Sri.Srinivasa Reddy
2. Sri.S.Ananda Reddy" Aniddd'
Aged about 29 years _ _ _
Son of late Sri.Srinivasa R-ed;-dy__ "
3. Sri.S.Arun :
Aged about3_22§y'eVars« A "
Son of iaié R'ed=1_1y
All are AR/_a't. N¢1:;56,*»._. --
Sarakki ,_'I?.Pl1.aS~F_:, _ --
J.P.N'agar, A A
Bangaloréi ¢~»~ 56()._0.'?8;__ Petitioners
(By Srsi-..AnarrclV_VR.'B..;*, A.d{foeate for
M/s..«.3<LeX~ Nex11s=,.¢Adv oeates)
'An'd:e "
Sri;
Aged--,about_ 56 years,
'Son of .L"a.f:e'Sri.Hanumaiah,
-«dijf.__R»esidiriget No.690/Q,
' V.1.5"TeMain, 11 Phase,
(I,Pv._N£i.'gar, Bangalore - 560 078,
--.ff_Re'j3reAsented by his wife &
"=--_C'zPA Hoider SmL.Bharathi. Respondent
:.V'(Responder1t ~ served}
This Criminal Petition is filed under Section
482 of Code of Criminal Procedure praying to set
aside the order dated 04.01.2010 passed by the XVI
ACMM, Bangalore in C.C.No.25€>/10 and isstiing
process compelling the attendance of… *-the
petitioners before him, quash all
proceedings.
This Petition coming on for
day, the Court made the following”:»—-.«
ORDE-.R
,.___,__.«.
This Criminal PetitionlVlli’i…sl’filedinunlldc-Zr ‘Section
482 of Code of Crirrlinal to set
aside the order dated O4fD_§ by the XVI
ACMM, Bangalore’ and issuing
process attendance of the
petitioners _liloeforelfiVllq–irr1»._.and to quash all further
proceedings,
3-f’ha’Ve heard learned counsel for the
=.Tl.10ugh the notice was served to the
resp__ondent”,~–_. he remained unrepresented.
lll”The primary facts of the case is as under:
Smt.Bharathi, the general power of attorney
lifholder of Sri.l?i.Udayakumar had presented a
complaint on behalf of her husband under Section
200 of Code of Criminal Procedure before
learned Additional Chief Metropolitan
Bangalore. It is stated in the complaint V’
Srinivasa Reddy had taken loan»..of_?5_”lall§’h.s»
her husband on :22,01.2007. :’~.i&t
Srinivasa Raddy, the husban_d”~.§)f
father of accused Nos.2 the
instalments regularly’ ?«’,,V’:fl.:\<5§=r_ij'pl:'ai.bnant. The
complainant further '%~fre$_'fil,c–§~%nction of
the said Reddy,
H.Udayakum€ar heavy stroke and
was place. Therefore,
GPA ho1de'rxo'f was looking after the
family _a_ffair4's"._:V'f'h.e lgelnleral power of attorney
:_'j'h'o.1.deri,_.'l:'S,mt.'vBharaltVh'i'lVcontacted Srinivasa Reddy
and make payment on 06.06.2009.
0llt’»_.v.vThere’fo’re, _S’rt:i’1.r_ri}:vasa Redciy issued a cheque dated
W1 lakhs drawn on Central Bank of
:I__n~r_’1″iaV,VffS_.arakki Layout, Bangalore. While issuing
cheque Srinivasa Reddy requested
S’mt.Bharathi not to present the cheque for few
ex’
days so that he could arrange the full amount and
deposit the same in the bank. Hence,
complainant dfid not present the cheque
09.07.2009, Smt. Bharathi again
Srinivas Reddy and requested to…m_ake_”pajftr2Ten’Vt
to deposit the sufficient amoLi:nt1’_”tto’:
cheque issued by him En faV’out:–~rz ofthe
The said Srinivas Reddy to
present the cheque he further
assured that he amount
in his on
the compiafinant
through his
banker .}.P.Nagar Branch,
Bangalore. u””I”‘._he~7’co.rnpzlair1ant was shocked on
becauseddddtdhde cheque issued by Srirafivasa
~c4t£~shj.onoured on the ground “Funds
AInsufficdien_t.’5’.fl.The complainant further stated that
knowing the fact of dishonour of cheque Smt.
._B”hdarVath.£ approached ail the accused persons and
V”=.._re’quested to make payment in respect of the said
cheque. At that tfime, the compiainant was
,
6;
‘J
shocked to know the fact that Srinivasa Reddy died
on 17.07.2009. When Bharathi contacted ail the
accused persons, they assured to repay the an’1’o_i1«nit:»_
within 7 days. Accordingly, the
waited for some time and again when shied”c’–an£a’ct’e,d
the accused persons personaliy, :’;;’he–y ‘gave’viag:_;e*:i;_’
answer. Though Smt.Bha’r.athii’–.approaVcEi:e.d_H the
accused persons number of tiii”mies, and’ issued} legal
notice, they did not t’he;,’_p.a’y»ni..e’nt_. Thereafter,
power of attorney h.ofd’er’–.Ao,f ‘&’thie’=–.Lycomplainant
Presented
The of-..t1’ie compiainant was
recorded. “TheI;’eVV(‘1’V:EiV£:$eV’1L’.@’11_”:©”4′.01.2010, iearned ACMM
after pe1i”u_siin,gii . the ,:i_.’t’origina1 complaint and
–v.,doeu.rn_enits prod–n,c_ed_aiong with the complaint and
ifsworn s,ta.tem’ent of the compiainant was satisfied
‘c_o–m’pi’ainant had made out a prima facie
-caseuuto procieed against the accused for the offence
under Section 138 of Negotiabie
.j__inst”ruAments Act. Therefore, a criminal case was
-._i”r’egistered against the accused for the offence
ax
“gm
punishable under Section 138 of Negotiable
Instruments Act and summons were also issued.
Feeling aggrieved by the same, the petitioners have
preferred this Criminal Petition.
4. It is the contention of iearned counsel foriwtéhe
petitioners that the procedure adopted;'”b’y–«i.f_’–t._he:_.li_”«_
iearneci Magistrate is improper. The
of the cheque has been dead.
heirs cannot be fastene.ci.4_withi’iegaEtg.~-iliabiiiiigyi”
Therefore, cognizance by learned
Magistrate is bad in
Lea§»_..rn’ed icoLi’n.,se»i1 the petitioners relies on
the foilowing ii1’t11iings.; ”
deci”sio.n<of Bombay High Court in the
\:as.é"»qf»._'sAvi'r.A at (ms vs. RAJESH DAMODAR
SARODE :RIJA vs. K.VINAY reported in 2003 {:21 DCR
wherein paragraphs 10 and 23 read as follows:
W10-
husband of the accused even as on the
date of presentation of the complaint,
From this, it is also clear that the order
impugned under the revision p€tllylOI’]S’_W’* ii
are illegal and improper and the
has resulted in miscarriage of ju.s,tiioe}f”‘
By settled principle of 1a.’W,i”i’t«A_i’s
that the revisional PowerstKofi:’.i_lih’is iiCo”u_rL
are not only limited in its sciope but..”al_so__
discretionary. In vieuiiioifrthe li”a,ct’s..V-iaiiol
circumstances ofthe ea”sei,_:’–itayould’meet
the ends of justiceipi.fi’.th1i:S. -were to
interfere with th_e._or.ders:bi1’n~piu§i;.e’d and
set at ‘i’i««a_i”igh:t_ gthe ir1i.i_’s.c_arfriiage of
justice’.””ii’ ~
(its) .Andhra Pradesh High
Court inieethe <§a.5e5fefi""s_;r-LiisAMPATHY AND ETC. vs.
V SMT.,TyIA1&IJUiG1IxIi"Ti& AND ANOTHER ETC. reported in
262i." Head Note reads as follows:
. Instruments Act (26 of
i'.1_l'it881i)i7,_es.i42(a) — Criminal RC. (2 of
195 «M Cognizance of offence
it ptirtishable under S. 138 –w Provisions of
tCriminal P.C. do not apply ~ Complaint
made in name of complainant/payee —
Not signed by' complainant (pages) but
t/'
_11_
by his 'Power Attorney holder ~ Not
maintainable ~ Since Power of Attorney
holder has no entity in terms of 8.142 –
Power of Attorney holder would not be a
holder in due course of the cheque."
5. it is undisputed fact that:the’C:-ra_wer~.__o’f.x.the
cheque M» Srinivasa ReddyV,ex’_piredA on
The death Certificate issuieiidhrby
authority is produCedi:’_”‘o_y eoitirxsiel for
the petitioners for disclose
that Sriniva2’sa’}L..Reeldy 17.07.2009.
Normally, against the
aeeusediiiaib’ate’,s.la?-§’E3u:it–.i»piri ith”e~–i’i1star1t case, before
instituting’ the person who has
is s u e h e __
i’vTAhei”qititeist.ion that arises for my consideration
isiittihiat iwi-hjpetiiher the criminal case can be filed
igagainstiil.0egi;al heirs of the deceased person who had
i..fisis’iu~-ed the cheque i.e. on the death of the drawer of
tiheiieheque? l answer this question in negative for
it “the following reasons:
{J/it
-12,
7. it is the contention of learned counsel for the
petitioners that the legal heirs of deceased
Srinivasa Redd}! cannot be made as accused,”
support of his contention, he has reliedfonflfi;–h:eii
above mentioned rulings. There is no in
the Negotiable lnstruments Actiyto
the legal heirs of the drawer-..__of their
offence punishable under the
Negotiable lnstrument.sii:’*Ptct1. case,
the transaction _.~b/¢i«iVi’i\”ii\~i1{‘x~hiindividuals.
Therefore, the cheque
dies, his i”‘is1,tic’€cessors cannot be
arrayed?’ tliieiiiiioffenee punishable
under Negotiable lnstruments
Act. ;’~ln tha,t’vi’eviz’- the matter, the criminal
iipr.oc”eed=ingis..’agaiiniist the petitioners herein cannot
ibe._proe:e–eided._further and the same is liable to be
dismiss,ed_f:_–This is one of the rarest of the rare
i”eases;.V\r}~here this Court can exercise its inherent
to quash the proceedings of the criminal
_vc_ase filed against the legal representatives of the
deceased person who had issued a cheque.
it-/”
_13_
Therefore, this (irhninal Petfiion deserves to be
afiowed.
8. In the resu&t,I pass the Rfllowfingz
ORDER _wH
(i) This Criminal Petition is a§=:pu::’_ed*;’
(fl) Consequenthg prbeeedingsx . he e,%CfC.
No.25€>/2010 p¢ndingi____:Lm,_ v.1_;_he fiI_e gif XVI
Addihonai ChkfiT,Meu@@5fi1§h_ Maghmraug
Bangaloreis hereby quashedfe “W
AHB