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2001 DIGILAW 197 (KAR)

M. RAMAIAH v. RAMANIKA SILKS (P) LTD.

2001-02-28

N.S.VEERABHADRAIAH

body2001
( 1 ) THE petitioner in these revisions questioned the order of the learned XVth Addl. CMM, Bangalore discharging the accused/respondent under Section 227 r/w. 203, Cr. P. C. which was registered for the offence under Section 138 of the Negotiable Instruments Act in CC Nos. 20866/97, 20591/98 and 20439/98. ( 2 ) THE brief facts are as follows :the respondent herein M/s. Ramanika Silks (P) Ltd. , has issued cheques in favour of M/s. Mandoth Syndicate for various amounts on different dates. When the cheques came to be presented, it was dishonoured. Thereafter, the petitioner got issued legal notice. As the amounts were not paid, he presented a complaint. The learned Addl. CMM, Bangalore, after recording the sworn statement took cognizance of the offence under S. 138 of the NI Act in CC No. 20866/97 on 5-7-99, in CC No. 20439/98 on 14-4-98 and in CC No. 20591/98 on 25-3-98 and ordered for issue of summons. Lateron, the respondent/accused appeared and filed an application for discharge. The learned CMM, Bangalore considering the submission made, dismissed the complaint as not maintainable and discharged the accused, though he had taken cognizance of the offence earlier. It is, as against the order of discharge of the respondent, the petitioner has come up with these revision petitions. ( 3 ) THE learned counsel Sri M. Rambhat for the petitioner vehemently contended that when once cognizance is taken, there was no reason for the learned CMM to discharge the accused on the ground that there are no prima facie case as the same being a matter of evidence that too for the offence under S. 138 of the NI Act. Secondly contended that the findings of the learned CMM holding that the GPA holder has no authority to file a complaint is also erroneous. Therefore, prayed to set aside the order of discharge and to direct the learned CMM to take the same on his file and to proceed in accordance with law. ( 4 ) THE learned counsel for the respondent in these revisions justified the order of the learned CMM in discharging the respondent and also contended that there is no valid notice as contemplated under S. 138b of the NI Act. Therefore, even on this ground also, discharge is proper and prayed to dismiss these revisions. ( 5 ) ON going through the impugned order of the learned XVth Addl. Therefore, even on this ground also, discharge is proper and prayed to dismiss these revisions. ( 5 ) ON going through the impugned order of the learned XVth Addl. CMM, Bangalore, it reveals that he has acted under S. 227 of Cr. P. C. and discharged the accused person. Section 227, Cr. P. C. confers power on the Sessions Judge for discharge of the accused but the learned CMM without applying his mind has proceeded to pass the impugned order. Secondly, it shows that the learned Judge has also come to the wrong conclusion that the GPA holder has no right to present the complaint. In this regard, while dealing with the similar provision and considering the powers of the GPA holder, the Kerala High Court in the decision reported in 2000 Crimes 232 : (2000 Cri LJ 2155) (Pandilai v. Jacob C. Alexander) has observed that : "the Power of Authority holder of a payee or a holder in due course can make a complaint under S. 142 of the NI Act". In this view of the matter, the finding of the Addl. CMM is not sustainable and the same is liable to be interfered with. Therefore, the order of discharge of the respondent is not sustainable. ( 6 ) FOR the foregoing reasons, all these revisions are allowed restoring on its original file and the learned CMM is directed to proceed in accordance with law. Liberty is granted to the respondent to take up all such legal contentions and defences that are available and also can seek for discharge if the Court finds that there is no prima facie case. Accordingly, all these revision petitions are allowed. Petitions allowed. --- *** --- .