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2020 DIGILAW 1123 (KAR)

Girish N v. Shriram Transport

2020-06-18

N.K.SUDHINDRARAO

body2020
JUDGMENT N K Sudhindrarao, J. - The matter has come up for first time today. It is at the stage of Admission and it is taken up through Video Conference. Learned counsel Smt. Saritha for Sri. S. Shankarachar for petitioner is present. 2. The petition is filed under Section 482 of Cr.P.C. by the petitioner seeking to quash the entire proceedings in CC No.22293/2015 on the file of XXVII Additional CMM at Bengaluru. 3. The case of the petitioner is that, he purchased a Lorry bearing No.KA.02.AD.3141 by raising loan with Axis Bank by hypothecating the said vehicle. The petitioner states that he has cleared the entire loan and nothing is due. Moreover, the Axis bank has issued no objection for canceling the hypothecation endorsement in the Registration certificate in his name and so also the loan clearance certificate. The said document beyond all doubt establishes that there is no liability subsisting on the said vehicle. The endorsement issued by the RTO dated 7.1.2015 is produced vide Annexure-B. Meanwhile the petitioner came to know that the respondent has filed a private complaint claiming that the petitioner raised hypothecation loan for the purpose of purchase of the said vehicle and also paid some loan instalments but he did not pay the balance thereby issued a cheque, on presentation of which came to be dis-honoured thereby the petitioner committed an offence punishable under Section 138 of Negotiable Instruments Act in PCR No.4853/2015 (CC No.22293/2015). 4. The petitioner further states that respondent has made a false claim. The petitioner in clear and unequivocal words claim that he has not raised any loan of any kind from the respondent and on the other hand, the case filed by the respondent is imaginary and the grounds are hypothetical. The petitioner further claims that a criminal case was registered and cognizance was taken against the petitioner in Criminal Case No.22293/2015 and the trial court dismissed the said case on 10.2.2017 and the criminal appeal which was preferred before this court in Crl.A.No.227/2019 came to be allowed on 11.10.2019 and the order of dismissal of criminal case was set aside, restored the criminal case and the matter has been remanded to the trial court for fresh disposal in accordance with law. The petitioner claims that it is quiet surprising that the respondent- Institution has its own presumption and imagination in making a false claim against the petitioner in the form of offence punishable under Section 138 of N.I.Act. 5. The petitioner states that there was and is no existence of legally recoverable debt from the petitioner in favour of respondent. The alleged amount due under the loan agreement is Rs.10,53,493/-. The petitioner in his petition without admitting but for arguments sake submits respondent claims the said amount and falsity is obvious on the face of the claim. Thus, for the said amount among the others according to the petitioner there are no material to proceed against him and there were no grounds for taking cognizance of the case. 6. Learned counsel Smt. Saritha for Sri.S. Shankarachar for petitioner is present through video conference and has submitted at length. She would reiterate the grounds urged in the petition and further would submit that it is quite surprising and shocking as to how the criminal case was registered against the petitioner which he came to know only when non bailable warrant was ordered. Learned counsel would submit that petitioner neither owed the amount of Rs.10,53,493/- nor executed any document, much less a cheque towards the repayment of loan. It is also submitted that it is stated in the petition in crystal clear terms that the petitioner did not owe the amount to the respondent. Per contra, petitioner had borrowed loan from Axis Bank, Whitefield Branch, Bangalore. The documents filed by the petitioner along with the petition are as under: (i) Annexure-A- Copy of the entire order-sheet in C.C.No.22293/2015 and typed copy of relevant portion; (ii) Annexure-B - Copy of endorsement issued by RTO; (iii) Annexure-C -Copy of the loan clearance certificate issued by the bank; (iv) Annexure-D - Copy of PCR filed by the respondent; (v) Annexure-E - Copy of the memo filed by the respondent for restoration of the case; (vi) Annexure-F - Copy of bank statement of account of the petitioner. 7. Annexure-A is the Xerox copy of the order sheet in C.C.No.22293/2015. On going through the order-sheet, it is seen that the complaint was filed under section 138 of N.I. Act before the learned trial judge and finally the said complaint came to be dismissed for non prosecution. 7. Annexure-A is the Xerox copy of the order sheet in C.C.No.22293/2015. On going through the order-sheet, it is seen that the complaint was filed under section 138 of N.I. Act before the learned trial judge and finally the said complaint came to be dismissed for non prosecution. The contents of the order sheet dated 10-2-2017 is as under: "Matter called at 4 p.m. Complainant and the counsel remained absent. No representation. By perusing the order sheet, it is found that, since from 09-09-2015, complainant and his counsel not present before this Court. No P.F. is paid. The attitude of the counsel and the complainant clearly goes to show that they are not interested to proceed in the case. Hence, it is just and necessary to dismiss the complaint. Accordingly, complaint is dismissed for non-prosecution. Accordingly, accused is acquitted for the offence punishable under section 138 of N.I. Act." 8. In the petition, it is stated that the complaint was dismissed. Incidentally, the Phrase "For nonprosecution" is not mentioned. In this connection, the respondent preferred criminal appeal before this court in No.227/2019. Admittedly, the criminal appeal came to be allowed on 11-10-2019, the order dated 10-2-2017 passed in CC No.22293/2015 and the matter came to be remanded for fresh disposal before the trial court. Thus, the trial court has ordered summons as per Annexure-A on 4.11.2019 and the subsequent date of hearing was scheduled to 30.11.2019. On 30.11.2019, the summons were returned with endorsement of having been served and matter was adjourned to 9.12.2019, on which day, the present petitioner entered appearance through his counsel and counsel has filed his vakalath. The non bailable warrant was issued against the accused(Petitioner) and the date of hearing is stated to be 18.12.2019. Now on the said date of hearing, non bailable warrant was issued returnable by 10.01.2020. On 10.1.2020 non bailable warrant was re- issued and adjourned to 10.2.2020, on which day, the matter was posted to 6.3.2020 and the learned trial judge has ordered for re issue of non bailable warrant. Thus, in the circumstances, it is clear that the criminal case got restored and by virtue of the non appearance before the trial court, the learned trial judge has ordered for issue of non bailable warrant and in view of the absence of the petitioner despite non bailable warrant, it has been reissued. Thus, in the circumstances, it is clear that the criminal case got restored and by virtue of the non appearance before the trial court, the learned trial judge has ordered for issue of non bailable warrant and in view of the absence of the petitioner despite non bailable warrant, it has been reissued. The further hearing dates are not produced before this court. 9. The next aspect is, the petitioner claims that none of the ingredients of Section 138 of N.I. Act, is found in the case, neither procedural nor substantive. Basically, there is no legally recoverable debt according to the petitioner. The value of the vehicle to which it is purchased is Rs.13,10,000/- on 11.1.2013 and loan was borrowed by the petitioner by hypothecating said vehicle on 11.01.2013. 10. The grounds urged by the petitioner are that, he does not know how the cheque has come to the hands of the respondent. Cheque Number is stated to be 873639 drawn on State Bank of Mysore, Nandini Layout, Bangalore-96, for the amount of Rs.10,53,493/- dated 22.1.2015. But the petitioner is unable to make out the issuance or presentation or dis honour of the said cheque, for the very reason that at no point of time, he executed any hypothecation agreement nor any other documents much less issued the cheque. It appears, everything is cooked up by the respondent. 11. However, learned counsel for the petitioner would submit that petitioner came to know that the existence of cheque with the respondent and it might have been procured by the representatives of the respondent on any date of their visit during 2014. Regard being had to the fact the petitioner has been made as scape goat by filing the case in the year 2015. 12. What could be seen from the order sheet is that, criminal case came into existence before the learned trial judge against the petitioner on 6.4.2005. The petitioner claims that he came to know only when warrant was issued as it was the matter or order amounting to acquittal of the petitioner. Criminal appeal preferred before this Court in Crl.A.No.227/2019 which was disposed of on 11-10-2019, wherein the matter was ordered to be remanded to the trial court it is that proceedings which are questioned by the petitioner. 13. Criminal appeal preferred before this Court in Crl.A.No.227/2019 which was disposed of on 11-10-2019, wherein the matter was ordered to be remanded to the trial court it is that proceedings which are questioned by the petitioner. 13. The issue involved in the case are: Cheque is claimed on false ground by the respondent; the petitioner had no intention to borrow money from bank, issued cheque to the respondent towards the legally recoverable debt. 14. The moot point that arises in this case is, Whether the cheque was mis used, there did not exist legally recoverable debt which also is the next question of fact. 15. The case as I have stated earlier started from 6.4.2015. Petitioner had opportunity from 6.4.2015 but so far petitioner also presented one face of proceeding till when the complaint was dismissed for non prosecution and there was no little finger raised by the petitioner to question the tenability of the complaint in the light of fraud or mis representation or whatever by the respondent, the matter culminated in dismissal for default before the trial court on 10-2-2017 and then came to High court in Criminal appeal in No.227/2019 which came to be allowed and the matter was remanded to the trial court with a direction to give opportunity to the complainant to serve notice to the accused and dispose of the case expeditiously within a period of one year after service of notice to the accused and directed the complainant to appear before the trial court on 4.11.2019. This is noted in the order sheet by the learned judge at page No.17 of the document which are in respect of the proceedings dated 4.11.2019. 16. At this point of time, learned counsel for the petitioner submits that the petitioner was not represented by a counsel before this court in the Criminal appeal. Regard being had to the fact that remand order was made known to the petitioner on earlier occasion and this petition was filed after issue and reissue of non bailable warrant to the petitioner. In the circumstances of the situation of facts and the conduct of the petitioner as stated above and conflicting versions regarding the cheque, at this stage, I find there are no merits in the case and necessity to proceed further. 17. Hence, I proceed to pass the following: ORDER The petition is dismissed as devoid of merits.