Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 965 (KAR)

SMT. DEVAMMA v. A. R. RAGHU

2003-11-17

M.S.RAJENDRA PRASAD

body2003
M. S. RAJENDRA PRASAD, J. ( 1 ) THIS petition by the accused, filed under Section 482, Cr. P. C. is for setting aside the order dated 22-3-2001 in C. C. No. 167/2001 on the file of the Civil Judge (Jr. Dn.) and J. M. F. C. , Chikkaballapura, wherein the learned Magistrate had taken cognizance against the accused for the offence under Section 138 of the Negotiable instruments Act, questioning the legality and propriety of the order impugned. ( 2 ) THE Court has heard the arguments of Sri Balakrishna, learned counsel on behalf of the petitioner-accused, and Sri A. Gopalaiah, learned counsel on behalf of the complainant, and perused the material on record. ( 3 ) THE learned counsel for the accused strenuously contended that the material on record clearly shows that the entire amount under the sale deed had been paid as seen from the registered sale deed and the cheque in question had been issued only for the purpose of securing peaceful possession of the property and the complainant has misused the same and has come up with the false complaint. There are no ingredients for the said offence and the learned Magistrate ought not to have taken cognizance of the case. Hence, the learned counsel prayed for allowing the petition. ( 4 ) ON the contrary, the learned counsel for respondent strenuously contended that the material on record clearly shows that there has been prima facie case made out against the accused for the said offence and the cheque in question had been issued by the accused towards discharge of the legal liability and there is presumption attached under Sections 118 and 139 of the N. I. Act. Hence, the complaint cannot be dismissed at the threshold. There are no grounds to interfere with the order impugned. Hence, the learned counsel prayed for dismissing the petition. ( 5 ) FROM the material on record, it is seen that the private complaint came to be presented against the accused for the offence under Section 138 of the N. I. Act, particularly alleging that the accused had issued the cheque in question for a sum of Rupees 1,00,000/- towards the discharge of legal liability, and the cheque, on being presented for encashment, had returned without payment. In spite of legal notice, the amount under the cheque remains unpaid. In spite of legal notice, the amount under the cheque remains unpaid. The learned Magistrate, after recording the sworn statement of the complainant and on perusal of the material on record, had passed a detailed order and directed issue of process to the accused. This order is questioned now by the accused. ( 6 ) IT has to be mentioned at the outset that the powers under Section 482, Cr. P. C. are to be exercised with due care, caution and circumspection, and in rarest of rare cases. ( 7 ) IN the case on hand, as per the specific case pleaded, the cheque in question had been issued towards the discharge of legal liability and the presumption under sections 118 and 139 of the N. I. Act comes to the aid of the complainant and this would not be the stage for this Court to embark upon the merits or otherwise of the contentions and the same will have to be thrashed out at the full dressed trial. ( 8 ) FOR the foregoing reasons, the petition stands dismissed. However, the accused is at liberty to urge all the grounds at the appropriate time before the trial Court. Any observation made by this Court in the course of this order, shall not prejudice any side. Petition dismissed. --- *** --- .