Shantiraj Devendra Kunachi v. Prakash N. Kanchagar
2017-03-09
K.N.PHANEENDRA
body2017
DigiLaw.ai
ORDER : K.N. Phaneendra, J. Heard the learned counsel for the petitioner. 2. The present petition is filed under Section 482 of Cr.P.C. seeking various reliefs, which are enumerated below: (a) To order for the transfer of the Private complaint in CC.No.11353/2013, before the learned XIII Additional Chief Metropolitan Magistrate, Bangalore, to the competent Magistrate in Dharwad District since the cheque is drawn on the State Bank of Mysore, Main Branch, Dharwad. (b) To call for the records of the said Criminal Case No.11353/2015, pending before, 13th Additional Metropolitan Magistrate, Bangalore. (c) To provide opportunity to lead the defence evidence of the petitioner/accused and cross-examination of the respondent/complainant in CC.No.11353/2013 in support of his case. (d) The right to amendment will be reserved to the petitioner. (e) Any other reliefs as the Hon'ble High Court deemed fit to be also granted.'? 3. The brief factual matrix that, emanate from the records are that, the respondent (complainant) herein has lodged a private complaint before the 13th Additional CMM Court, Bangalore City in CC.No.11353/13 under Section 200 of Cr.P.C for the offence punishable under Section 138 of Negotiable Instruments Act (for short, 'N.I. Act'), against the petitioner. The Court has taken cognizance after due procedure and issued summons to the accused (petitioner herein). In fact, the accused appeared before the Court and initially contested the proceedings. The complainant- s case is that, the petitioner/ accused entered into a transaction for purchase of two sites measuring 40 feet x 60 feet in Yalakkishettar Colony for a sum of Rs.4,65,000/- with the respondent in the year-1998. But the petitioner herein has not performed his part of contract and as a result, the respondent suffered heavy loss to the tune of Rs.25,00,000/-. With regard to this, on repeated requests, the petitioner agreed to make good the loss to the respondent and executed a promissory note dated 11.12.2013 for a sum of Rs.25,00,000/- and also by issuing post dated cheque bearing No.212565 dated 9-2-2013 drawn on the State Bank of Mysore, Dharwad, in favour of the respondent. The respondent has presented those cheques and those cheques were returned with the shara of ' Insufficient Funds- . After issuing legal notice for non-compliance of provision under Section 138 of N.I. Act, a complaint came to be lodged. During the pendency of the proceedings, the petitioner was enlarged on bail vide orders dated 30.1.2014. 4.
The respondent has presented those cheques and those cheques were returned with the shara of ' Insufficient Funds- . After issuing legal notice for non-compliance of provision under Section 138 of N.I. Act, a complaint came to be lodged. During the pendency of the proceedings, the petitioner was enlarged on bail vide orders dated 30.1.2014. 4. It is very relevant to note here on 1-3-2014, a compromise was reached between the parties, in turn the petitioner has accepted to pay the copromise amount i.e., Rs.20,00,000/- and as per the compromise the petitioner has agreed to pay said amount in 10 instalments of Rs.2,00,000/- each, starting from 1-4-2014. Accordingly the petitioner has made some payments in connection with said case. 5. The above said factual aspects are not in dispute, particularly the payment of some amount made by the petitioner herein respondent is also not in dispute. However, learned counsel for the respondent submits that, as on today the petitioner has already made payment of Rs.7,50,000/-. But the learned counsel submits that after payment of the first instalment of Rs.2,00,000/- he filed a memo stating that the Court has no jurisdiction. In the mean time, the trial Court has ordered for issuance of warrant for recovery of remaining amount. In the mean time calling in question the joint compromise memo filed on 1-3-2014 and also directing the petitioner to pay sum of Rs.20,00,000/- to the complainant, the petitioner has preferred an appeal in Criminal Appeal No.1508/2015 before the 48th Additional City Civil and Sessions Judge, Bengaluru City. In the mean time, the petitioner has preferred a Criminal Revision Petition before this court in Cri. R. P. No.100164/2015 seeking for transfer of the private complaint pending before XIII Additional Chief Metropolitan Magistrate, Bangalore to the competent Court at Dharwad and also sought for setting aside the complaint itself as the alleged transaction is illegal and fraudulent and void. This Court after hearing in detail culling out the compromise entered into between the parties and the subsequent events and also the conduct of the petitioner herein, has come to the conclusion that the said revision petition was filed in utter abuse of process of the Court and therefore dismissed the said petition. It is worth to refer here paragraph-4 of the order in the said revision petition. "4.
It is worth to refer here paragraph-4 of the order in the said revision petition. "4. I have perused the grounds urged in the petition and all the documents produced before the court including the private complaint and order sheets of the court below. I have also perused the joint memo filed by the parties before the concerned Magistrate Court which is dated 1-3-2014. As per the joint memo, it is clearly agreed by both sides that the matter was settled for an amount of Rs.20,00,000/- as per the advise of the elders and the petitioner/accused agreed that he is ready and willing to pay Rs.2,00,000/- on 10th of every month before the court by way of a Demand Draft. Complainant also agreed for the said settlement and the accused also had undertook that if he failed to pay the said amount, the complainant can execute the order by attaching the property belonging to him. The said joint memo was signed by the learned counsel on both sides and also by the parties i.e., the complainant as well as the accused. Perusing the order sheet of the trial Court, the petitioner/accused herein went on making payments for some months at the agreed rate of Rs.2,00,000/- but intermittently he stopped making payment. The payment made amounts to Rs.7,00,000/-. But, now the petitioner has come up before this court challenging the terms of the compromise under the joint memo. Looking to the order sheet and the conduct of the petitioner in depositing the amounts and making payment to the complainant goes to show that the petitioner complied and agreed for the terms of the joint memo and accordingly, he made the payment for some months, but subsequently, he failed to make the payment. Considering these materials placed on record, I am of the opinion that this petition filed before this court is nothing but an abuse of the process of court. There is no merit in the petition. Accordingly, the petition is rejected. Accordingly, IA No.3/2015 for extension of stay does not survive for consideration and the same is disposed of." 6.
Considering these materials placed on record, I am of the opinion that this petition filed before this court is nothing but an abuse of the process of court. There is no merit in the petition. Accordingly, the petition is rejected. Accordingly, IA No.3/2015 for extension of stay does not survive for consideration and the same is disposed of." 6. This Court while disposing of the said revision petition has considered settlement entered into between the parties and payment of Rs.7,00,000/- and also the conduct of the petitioner in depositing said amounts and also that, challenging of the said order before the Court for setting aside the compromise, as illegal and virtually also for transfer of the said petition and thereafter the Court has observed that the revision petition deserves to be dismissed and accordingly dismissed. 7. Apart from the above proceedings, the respondent herein has also preferred a Criminal Appeal before the 48th Additional City Civil and Sessions Judge, Bengaluru in Criminal Appeal No.1508/2015, wherein he sought for cancellation of the joint memo and setting aside the order passed by he learned Magistrate in accepting the joint memo in CC.No.11353/2013. The said Criminal Appeal also came to be dismissed as not maintainable vide order dated 10-2-2016. 8. Having failed in these above said two proceedings, it appears, the petitioner in order to prevent the respondent from executing the order legally obtained by him before trial Court, the petitioner appears to have made two applications under Section 145 of N.I. Act, wherein the petitioner has sought for permission to lead further evidence in the said case and also seeking permission to produce his evidence and to cross-examine the complainant in this regard. The said two applications came to be rejected by the trial Court vide order dated 10-1-2017 on cost of Rs.500/-. A detailed lengthy order has been passed by the trial Court. The petitioner even did not care to produce the detailed order passed by the trial Court, but only operative portion of the order is produced before the Court. Against the order passed by the learned Magistrate, it appears that the petitioner is before this Court seeking indulgence of this court to direct the trial Court to provide an opportunity to the petitioner to cross-examine the complainant and to lead his evidence, and direct the trial Court to dispose of the case, in accordance with law. 9.
Against the order passed by the learned Magistrate, it appears that the petitioner is before this Court seeking indulgence of this court to direct the trial Court to provide an opportunity to the petitioner to cross-examine the complainant and to lead his evidence, and direct the trial Court to dispose of the case, in accordance with law. 9. Looking to the above facts and circumstances of the case, the petitioner has entered into joint memo long back and in pursuance of the joint memo, as on today, he has already paid an amount of Rs.7,50,000/- He has in fact, challenged the joint petition filed by them before the two Forums, one is by way of criminal revision petition and another by way of Criminal Appeal before this Court. Therefore, the joint memo filed by the parties and the Court recording the compromise has reached its logical conclusion. That virtually amounts to termination of the criminal case before trial Court by virtue of the compromise. What is remaining between the parties is that the payment of the amount in accordance with the joint memo. At the time filing of the joint memo, both the parties had knowledge with regard to the jurisdiction of the Court and by virtue of the same they have entered into compromise. Even otherwise, the jurisdiction of the court in recording the compromise was also challenged before this Court and before the Sessions Court by way of Criminal Revision Petition and as well as the Criminal Appeal. This Court in categorical terms has held that the said joint memo has entered into between the parties and conduct of the petitioner is very much considered by this Court, while dismissing the revision petition. Once such proceedings are concluded before the trial Court, the petitioner has no right to file any further application in order to re-open the said concluded proceedings in order to permit him to cross-examine the complainant or to lead any evidence. The only proceeding which can be proceeded with is that, the execution of the already concluded proceedings remaining before the said Court.
The only proceeding which can be proceeded with is that, the execution of the already concluded proceedings remaining before the said Court. It is quite right to say here that having availed opportunities before this Court in revision petition before the Sessions Court in Criminal appeal, by hook or crook, the petitioner want to see that the respondent would not reap the fruits of the joint memo filed before the trial court, such conduct of accused/petitioner should not be encouraged in any manner. The said attitude and conduct should be met with an iron hand by the courts in order to teach a lesson to such persons, who invoke the jurisdiction of the Court unnecessarily to harass their opponents. 10. Under the above said facts and circumstances, I do not find any reason to re-open the case already concluded in CC.No.11353/2013 for to provide any opportunity to cross-examine the complainant or the defence to lead any evidence. The further conduct of the petitioner, as I have already narrated, it gives an indication that the petitioner would stoop to any level to take law into his hands for the purpose of opposing his adversory in order to harass him. Hence, I am of the opinion that this petition is also liable to be dismissed with heavy cost. Hence, the following order: ORDER The petition is dismissed on cost of Rs.10,000/- to be payable to the respondent herein.