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Karnataka High Court · body

2019 DIGILAW 1093 (KAR)

Rekha Sathyanarayana v. P. Suresh

2019-06-04

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. This petition has been filed by the petitioner-accused No.1 under Section 482 of Cr.P.C. seeking to quash the order dated 25.02.2016 in C.C.No.432/2016 on the file of the Principal Civil Judge (Jr.Dn) and J.M.F.C., Bellary. 2. I have heard the learned counsel for the petitioner-accused and the respondent-complainant. 3. The gist of the case of the complainant is that the respondent-complainant and the petitioner-accused are brothers and respondent was the owner in possession of brick factory. Due to some financial problem, respondent was willing to sell the said factory and he offered the same to the petitioner-accused for a sale consideration of Rs.83,62,000/- including term loan of Rs.28,00,000/- due to Indian Bank, Catholic Centre, Bellary. The petitioner-accused by accepting the offer, executed two sale deeds, one sale deed is dated 01.04.2015 for a sum of Rs.31,86,000/- out of which Rs.16,86,000/- was paid in cash and rest of the amount of Rs.15,00,000/- was paid by way of cheque bearing No.039463 dated 31.03.2015 drawn on Sir M. Vishweshwaraiah Co-operative Bank Limited, Bengaluru towards entire consideration amount and the said cheque came to be realized. Another sale deed was dated 01.04.2015 for consideration of Rs.23,96,000/-, out of which an amount of Rs.13,27,000/- was paid by cash and rest of the amount to the tune of Rs.10,00,000/- was paid by way of cheque bearing No.039464 dated 31.03.2015 drawn by the same bank. The petitioner, on the same day, entered into an agreement with the respondent and undertook to clear off the bank term loan of Rs.28,00,000/- and issued a blank cheque bearing No.039465 drawn on the same bank towards security for the clearance of the above said loan which is to be returned after clearance of the loan. The respondent-complainant further alleged that the said term loan was not cleared and when the said cheques were presented for encashment, they were returned with a shara "Stopped payment". Thereafter, a legal notice came to be issued to the petitioner, to which he has replied. Thereafter a complaint came to be registered for the offence punishable under section 138 of the Negotiable Instruments Act. The learned magistrate, after considering the facts and circumstances of the case, took cognizance and issued summons to the accused. Challenging the same, the petitioner-accused is before this Court. 4. Thereafter a complaint came to be registered for the offence punishable under section 138 of the Negotiable Instruments Act. The learned magistrate, after considering the facts and circumstances of the case, took cognizance and issued summons to the accused. Challenging the same, the petitioner-accused is before this Court. 4. It is the submission of the learned counsel for the petitioner-accused that there was no legally recoverable debt as on the date and the said cheques have been taken by the respondent-complainant as a security and it is further submitted that the bank term loan for an amount of Rs.28,00,000/- has been cleared by the accused-petitioner and the bank has also given clearance certificate dated 26.09.2006. The documents which have been kept as a security were also released in favour of the accused. It is further submitted that the material available before the Court clearly shows that no offence has been made out. Learned Magistrate, without application of mind and without referring to the said documents has taken cognizance. It is further submitted by the learned counsel for the complainant that if the notice and reply are considered and looked into, they show that the amount which was due to the complainant has been cleared and no case is made out. It is further submitted that if the material which has been produced clearly shows that no offence is made out, then under such circumstances, it would not be justifiable to send the accused for trial to prove his defence. In order to substantiate the said contention, he relied upon the decision rendered by the Hon'ble Apex Court in the case of M/s. Anita Malhotra v. Apparel Export Promotion Council and another, (2012) AIR SC 31. It is further submitted that the documents which have been produced, and the other materials have not been considered, which were available before the magistrate clearly goes to show that he has not applied his mind and he has come to a wrong conclusion by issuing the notice to the petitioner-accused. On these grounds, he prayed to allow the petition and quash the proceedings. 5. Per contra, the learned counsel for the respondent-complainant has vehemently argued and taken up a contention that the Trial Court, after considering the material placed before it, has rightly took cognizance of the offence. On these grounds, he prayed to allow the petition and quash the proceedings. 5. Per contra, the learned counsel for the respondent-complainant has vehemently argued and taken up a contention that the Trial Court, after considering the material placed before it, has rightly took cognizance of the offence. It is further submitted that after reply notice, an amount of Rs.13,85,000/- has been paid by the petitioner-accused. If really said amount has been paid to the term loan of Rs.28,00,000/-, then under such circumstances, subsequent payment to the extent of Rs.13,85,000/- does not arise at all. He further submitted that the said amount has been paid because there appears old stock, which has been purchased by Rajendra Prasad, who is not at all connected to the said transaction. The transaction has to be cleared by the petitioner-accused. The said amount though it is stated that it has been cleared, it requires consideration by leading evidence. At this juncture, it cannot be held that there is no prima-facie material so as to quash the proceedings. It is further submitted that Rs.10,00,000/- which has been paid is out of the consideration amount of Rs.83,62,000/- and not pertaining to the term loan amount of Rs.28,00,000/-. On these grounds, he prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 7. It is the submission of the learned counsel for petitioner-accused that the documents so which have been produced, on the face of it, creates suspicion that the said term loan amount has been cleared and there was no amount due to the respondent complainant. The documents including notice, reply notice and complaint, clearly show that there is no prima-facie case made out. He has relied upon the decision rendered by the Hon'ble Apex Court in the case of M/s. Anita Malhotra (supra), at para No.13, which reads as under: "13. In Harshendra Kumar D. vs. Rebatilata Koley and Others, (2011) 3 SCC 351 : ( AIR 2011 SC 1090 : 2011 AIR SCW 1199), while considering the very same provisions coupled with the power of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') for quashing of the criminal proceedings, this Court held: "25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage." As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merit of the accusation, but if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code." 8. On close reading of the above paragraph, it is apparent to note that, the Hon'ble Apex Court has made it clear that if the documents, which have been produced are beyond suspicion or doubt, and if the materials clearly establish the defence taken by the accused, then the accused need not be relegated to trial and the proceedings can be quashed. In the instant case on hand, several contentions have been taken in this behalf. Even the documents, which are produced, show that the term loan has been paid by the accused, but some other documents, which have been brought to the notice of this Court show that later an amount of Rs.13,85,000/- has been credited to the account of the complainant by one Rajashekhar. All these material requires consideration of the Court and prima-facie on the face of the documents, it cannot be held that no case has been made out by the complainant under Section 138 of the Negotiable Instruments Act. 9. It is a defence taken by the accused and he has to substantiate his defence by producing reliable documents or by leading evidence. The documents, which are available on record, do not show that there is no prima-facie material. It is well settled prepositions of law that while discharging or quashing the proceedings, after perusal of the materials if it is found that a prima-facie case has been made out and if entire material is accepted, then under such circumstances, the Court can exercise the powers vested under Section 482 of Cr.P.C. It is also well established principles of law that when a question of facts and law is involved, then this Court will be very well in exercising the power under Section 482 of Cr.P.C., and the rest of the discretion has to be given to the Court below to consider and pass an appropriate order either for discharging or to exercise the power under Section 258 of Cr.P.C. 10. In the light of above discussions, I feel that the petitioner-accused has not made out any grounds so as to quash the proceedings. Hence, the petition stands dismissed. However, it is observed that if any application is filed for the purpose of discharge, the same may be considered in accordance with law, without looking to the above observation.