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2019 DIGILAW 60 (KAR)

S. Palani v. Mallangouda

2019-01-07

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. I have heard the arguments of the petitioner's counsel and also the learned counsel appearing for the respondent. 2. The factual matrix of the case is that the petitioner is the resident of Namakkal Town in Tamil Nadu. The son-in law of the petitioner namely, Murugesan was the Managing Director of M/s. Poorani Feeds Pvt. Ltd., which is a company incorporated under the Companies Act, 1956 and inter alia engaged in the business of manufacture of Poultry/cattle feeds. The company during the course of its business appears to have purchased raw materials from various suppliers across India, including the respondent herein. 3. Due to the sudden outbreak of Bird Flue in India during early 2006, the business of the company was greatly affected. As a result, the company has sustained huge loss and started to default in payment to the suppliers who had supplied raw materials to the Company on credit basis. The son-in-law of this petitioner who was the Managing Director of the Company has committed suicide on 5/3/2006. 4. After the death of the son-in-law, the present respondent and other creditors insisted this petitioner to make payment and there was no any connection with company or its business transactions, with this petitioner. He was forced to issue the cheques to the extent of 122 postdated cheques. It is contended that the cheques were not issued towards discharge of debt or liability, but, were taken by way of coercion and misrepresentation. The petitioner got issued a legal notice on 26/4/2006 to the respondent calling upon him to issue cheques and on the very same day, he also issued 'Stop Payment' instruction to his Bank explaining the circumstances. 5. The petitioner has also filed a suit in O.S. No.630/2006 seeking the declaration to declare that the cheques which were issued are null and void, as there is no relationship between the parties as creditor and debtor and the suit was decreed. 6. During the pendency of the said suit and despite being aware of all the facts, the respondent has presented the cheuqes and the same was returned with an endorsement 'Payment Stopped by the Drawer'. The respondent has issued a legal notice dated 3/11/2006 and thereafter, filed a complaint before the judicial Magistrate, I Class, Kushtigi. 6. During the pendency of the said suit and despite being aware of all the facts, the respondent has presented the cheuqes and the same was returned with an endorsement 'Payment Stopped by the Drawer'. The respondent has issued a legal notice dated 3/11/2006 and thereafter, filed a complaint before the judicial Magistrate, I Class, Kushtigi. During the pendency of the criminal suit, the suit was decreed and being aggrieved by the very filing of the complaint and also by the order of the learned Magistrate in taking cognizance of the offence without any alternative or efficacious remedy, the petitioner has approached this Court invoking Section 482 of Cr.P.C. 7. The main grounds urged by the petitioner in the petition that in view of the decree passed by the Civil Court in O.S.No.630/2006 declaring the cheques that are the subject matter of complaint in C.C.No.61/2007 as null and void and the consequential injunctive order passed against the respondent from proceeding to recover the amount under the cheques. The complaint is not maintainable. The said question as to validity of the instrument has already examined and adjudicated by the Civil Court, which has declared the cheques in question to be non-est in O.S.No.260/2006. Under these circumstances, there is no necessity on any trial in CC No.61/2007 as it would result declaration of proceedings and complaint is liable to be set aside. This Court has to quash the proceedings initiated under Section 138 of the N.I. Act. The counsel appearing for the petitioner in his argument reiterated the grounds urged in the petition. Further, contended that the petitioner has explained the circumstances under which cheques are given and there is no any nexus with regard to the transaction and proceedings has been initiated in civil side and the Court also declared that the cheques which are issued are no way connected to any debt or business transactions and hence, the respondent cannot proceed with the case. 8. Per contra, the learned counsel appearing for the respondent in his argument vehemently contends that the petitioner cannot get the decree in the civil side restraining the petitioner in proceedings against the respondent for the offence punishable under Section 138 of the N.I. Act. 8. Per contra, the learned counsel appearing for the respondent in his argument vehemently contends that the petitioner cannot get the decree in the civil side restraining the petitioner in proceedings against the respondent for the offence punishable under Section 138 of the N.I. Act. It is further contended that the petitioner has not disputed the very fact of issuance of cheques and only he has explained circumstances under which the cheques are issued, whether he was forced or due to any coercion, the cheques are issued has to be dealt with by the Court, and the petitioner cannot invoke Section 482 of Cr.P.C. to quash the proceedings on the guise of the declarative relief which he has obtained that too the exparte order and hence, the very petition is not maintainable. 9. After having heard the petitioner's counsel and also the counsel appearing for the respondent, the point that arise for my consideration is whether this Court can invoke Section 482 of Cr.P.C. to quash the proceedings initiated against the petitioner in CC No.61/2007 on the file of the I Class JMFC, Kustagi, Koppal, for the offence punishable under Section 138 of N.I.Act. 10. On hearing the both the counsel and examining the factual aspects of the case is that the son-in-law of the petitioner herein has established a Company M/s. Poorani Feeds Pvt. Ltd. and the petition also discloses that the respondent as well as the others have supplied the raw materials to the company on credit basis and the reasons assigned in the petition that due to sudden outbreak of Bird Flue in India during early 2006, the business of the company was affected. As company sustained huge loss and further due to loss of business and mounting pressure from the creditors, the Managing Director of the company and the son-in-law of the petitioner has committed suicide on 5/3/2006. After the death of the son-in-law, it is contended that by compelling, threatening, coercing and also by misrepresenting that dues were the personal liability of the deceased, obtained in all 122 post dated cheques from the personal account of the petitioner with Karur Vysya Bank, Karur. 11. After the death of the son-in-law, it is contended that by compelling, threatening, coercing and also by misrepresenting that dues were the personal liability of the deceased, obtained in all 122 post dated cheques from the personal account of the petitioner with Karur Vysya Bank, Karur. 11. On perusal of the factual matrix of the case, it is clear that the cheques are issued by the petitioner and the aspect of whether those cheques are issued by compelling, threatening, coercion and by misrepresentation has to be considered in the trial and the same cannot be urged in the petition filed under Section 482 that due to the compelling reason, the said cheques were given and in order to proceed with the case, the Court has to only examine whether the complaint averments and the documents produced along with the complaint disclose to proceed against the petitioner. The Apex Court in several judgments has held that Section 482 is not a rule and the same is an exception and in order to proceed with the case, the Court at the first instance only look in to the averments of the complaint whether any case is made out to proceed with case and if found prima facie material then the Magistrate by applying its judicial mind proceed with case. The Apex Court in the judgment reported in between Priyanka Srivastava and Another Vs. state of Uttar Pradesh and Others, (2015) 6 SCC 287 has held that duty and approach of Magistrate, while exercising the power under Section 156(3)-preconditions to be satisfied and only vigil is required to prevent the abuse of process. 12. In the case on hand, the petitioner did not dispute the fact that he has issued the cheques and also admitted the fact that the company has suffered loss due to the Bird Flue and the son-in-law of the petitioner has also committed suicide and contended that the cheques were issued during compelling circumstance and contention has to be examined by the trial Court and mere strong suspicious is enough to proceed with the case and the Court cannot exercise the power under Section 482 of Cr.P.C., looking into the evidence at the time of proceeding against the petitioner. Hence I am of the opinion that it is not a case to invoke Section 482 of Cr.P.C. to quash the proceeding as sought in the petition. Hence I am of the opinion that it is not a case to invoke Section 482 of Cr.P.C. to quash the proceeding as sought in the petition. The other contention of the petitioner that Namakkal Court has declared that those cheques are not issued in connection with the transaction and debt and when the Court has declared in the civil suit, the Magistrate cannot proceed with the case cannot be accepted. The Civil proceedings are distinct from the criminal proceedings and only in order to proceed with the case, I have already pointed out that when the petitioner himself contends that he was forced to issue the cheques and issued under the compelling circumstances and the same has to be considered during the course of trial, not at the time of considering the issuance of process and only the complaint averments to be looked into by the Magistrate. The only question is whether he has applied judicial mind or not. Hence, I am of the opinion that the civil suit which has been filed by the petitioner did prevent the complainant in proceeding against the respondent cannot be accepted. In view of the discussions made above, I pass the following: ORDER The petition is dismissed. The trial Court is directed to dispose of the matter as soon as possible as it is a matter of the year 2007.