Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1632 (KAR)

Shambhudevi v. Vijaya

2020-09-01

S.R.KRISHNA KUMAR

body2020
JUDGMENT S.R. Krishna Kumar, J. - In this petition, the petitioner seeks quashing of the impugned order dated 02.07.2019 passed in C.C. No. 532/2019 by the trial Court directing the petitioner to deposit 20% of the cheque amount in terms of Sec. 143-A of the Negotiable Instruments Act (for short 'N.I. Act') within a period of 60 days. 2. The brief facts giving rise to the present petition are as follows: The respondent-complainant filed a private complaint u/s 200 of Cr.P.C. r/w Sec. 142 of the N.I. Act in P.C. No. 33/2019 against the petitioner-accused for offence punishable u/s 138 of the N.I. Act. It was the specific contention of the complainant that towards discharge of legally enforceable debt due from the accused to the complainant, the accused drew and delivered cheque bearing No.813601 dated 16.11.2018 in a sum of Rs.6,70,000/-. The said cheque having been dishonoured for want of sufficient funds, statutory notice dated 14.12.2018 was issued on behalf of the complainant which was received by the accused on 15.12.2018. It was contended that since the accused failed to comply with the demand made in the said notice and thereby committed the aforesaid offence, the complainant filed the said private complaint before the trial Court. 3. On 02.02.2019, the trial Court took cognizance of the said offence and having registered the aforesaid case and having examined the complainant (PW1) who also filed his affidavit and got marked documents at Ex.P.1 to P.5 and after hearing the learned counsel for the complainant, the trial Court took cognizance of the offence punishable u/s 138 of the N.I. Act and issued summons to the accused. 4. On 17.05.2019, the accused appeared before the trial Court and sought for his enlargement on bail which was granted by the trial Court and the matter was adjourned to 02.07.2019 for recording of plea. On that day, both counsel and parties were present and the plea which was recorded was read over and explained to the accused, who denied the plea and claimed to be tried. Under these circumstances, invoking and placing reliance upon the amended provisions contained in Sec. 143-A of the N.I. Act, the trial Court passed the impugned order dated 02.07.2019 directing the accused to deposit 20% of the cheque amount. Aggrieved by the impugned order, petitioner is before this Court by way of the present petition. 5. Under these circumstances, invoking and placing reliance upon the amended provisions contained in Sec. 143-A of the N.I. Act, the trial Court passed the impugned order dated 02.07.2019 directing the accused to deposit 20% of the cheque amount. Aggrieved by the impugned order, petitioner is before this Court by way of the present petition. 5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the material on record. 6. Learned counsel for the petitioner submits that the trial Court committed grave and serious error of law and fact in directing the petitioner to deposit 20% of the cheque amount without assigning any reasons. It was submitted that apart from the fact that the impugned order is a non speaking order without application of mind, the trial Court committed an error in suo moto passing the impugned order without there being any application filed by the complainant invoking Sec. 143-A of the N.I. Act. It was pointed out that even as per the amended provisions of Sec.143-A, the usage of the word 'may' in Sec.143-A(1) clearly indicates that it was not mandatory but only directory and as such, the trial Court had not exercised its discretion properly and legally while passing the impugned order. Learned counsel places reliance upon the decision of the Madras High Court in the case of LGR Enterprises V. P.Anbazhagan Crl. O.P. Nos.15438/2019 and connected matters dated 12.07.2019 in support of his submissions. 7. Per contra, learned counsel for the respondent submits that having regard to the facts and circumstances of the case as well as the material on record, the discretionary order passed by the trial court by invoking Section 143-A of the N.I Act did not warrant interference by this Court and as such, he would support the impugned order and seeks dismissal of the petition. 8. I have given my anxious consideration to the rival submissions and perused the material on record. 9. 8. I have given my anxious consideration to the rival submissions and perused the material on record. 9. Before adverting to the submissions advanced by the parties, it is necessary to bear in mind that it is now well settled that this Court is entitled to exercise its jurisdiction/ inherent powers under Section 482 Cr.P.C., especially when it relates to interfering with interlocutory orders/ proceedings only if such exercise of power is required to prevent abuse of the process of the court arising out of such impugned order/proceedings or to secure the ends of justice. In my considered opinion, in the facts of the instant case, the impugned order passed by the trial court invoking Section 143-A of the N.I Act and thereby directing the accused to deposit 20% of the cheque amount does not warrant interference by this Court in the exercise of its powers under Section 482 Cr.P.C for the following reasons: a) It is not in dispute that the earlier order dated 02.02.2019 passed by the trial Court taking cognizance of the offence alleged to have been committed u/s 138 of the N.I. Act by the accused and registering a case against him was not challenged by the accused and that the same has attained finality. In the complaint, it was specifically alleged that despite having received the statutory notice dated 14.12.2018, the accused did not comply with the demand made in the said notice. A perusal of the material on record viz., complaint, sworn statement, affidavit, documents, order dated 2-2-2019 passed by the trial court taking cognizance of the case and issuing summons to the accused, bail application filed by the accused, order passed by the trial court granting bail to the accused etc., as well as the facts/ grounds/ documents filed in the present petition will clearly indicate that the defence of the accused is not forthcoming in any of the aforesaid documents. So also, the presumption under Section 139 of the N.I Act that arises in favour of complainant and against the accused has also not been rebutted by the accused so far. So also, the presumption under Section 139 of the N.I Act that arises in favour of complainant and against the accused has also not been rebutted by the accused so far. While it is true that there is no compulsion for the accused to plead/prove his defence or rebut the aforesaid presumption at the present stage of the proceedings, in the face of the aforesaid material on record and in the absence of any material to indicate the defence of the accused or that he has rebutted the presumption arising under Section 139 of the N.I Act, in the facts of the case on hand, it can not be said that the trial court exercised its discretion erroneously or improperly by passing the impugned order warranting interference by this Court under Section 482 Cr.P.C. b) Insofar as the contention urged on behalf of the petitioner that the impugned order is a non-speaking order and has been passed without any reasons, having regard to the aforesaid facts and circumstances, in particular, the absence of any defence being put forth by the petitioner-accused before the trial Court or before this Court coupled with the fact that the order dated 02.02.2019 taking cognizance by the trial Court has not been challenged by the petitioner and the said order clearly showing application of mind by the trial Court, I am of the opinion that the impugned discretionary order passed by the trial Court pursuant to taking cognizance of the offence and registering the case against the accused and upon the accused pleading not guilty is perfectly legal and proper and the trial Court was fully justified in following the procedure prescribed u/s 143-A and directing the petitioner to deposit 20% of the cheque amount. Under these circumstances, the impugned discretionary order passed by the trial Court, in the aforesaid facts and circumstances of the instant case, being just and proper and not resulting in the abuse of the process of the court and interference not being warranted to secure the ends of justice, the same does not warrant interference by this Court in the exercise of its jurisdiction u/s 482 of Cr.P.C. c) The contention of the petitioner that in the absence of an application filed under Section 143-A of the N.I Act by the complainant, it was not open for the trial court to invoke the said provision is misconceived and untenable. A plain reading of the said provision coupled with the very object/intendment of the legislature in introducing the said provision by way of amendment is sufficient to indicate that the trial court was fully justified in invoking the said provision and passing the impugned discretionary order even without there being an application made in that regard by the complainant. As such, even this contention urged on behalf of the accused deserves to be rejected. d) Even assuming for a moment that the impugned order is cryptic and does not contain sufficient reasons, there is no warrant for interference under section 482 Cr.P.C for more than one reason. Firstly, having regard to the material on record, the trial court has exercised its discretion and proceeded to invoke Section 143-A of the N.I Act in the facts and circumstances of the case. In the absence of the accused putting forth his defence, much less any contra material in support of his defence, it can not be said that the trial court has erroneously or arbitrarily exercised its discretion while passing the impugned order. Secondly , in view of the provisions contained in Section 465 Cr.P.C which contemplate that mere error, omission or irregularity in the impugned order does not entail reversal of the order by this Court unless it is shown that it has occasioned failure of justice, having regard to the aforesaid facts and circumstances of the instant case, I am of the considered opinion that the impugned order has not occasioned any failure of justice warranting interference by this Court. e) As regards the apprehension of the accused that in the event he is directed to pay 20% of the cheque amount to the complainant and the accused is ultimately acquitted by the trial court, the accused would find it difficult to get refund of the said amount is concerned, the said apprehension can be allayed in view of the fact that apart from the buffers/safeguards already existing in Section 143-A(4) of the N.I Act, necessary directions by balancing equities can also be issued by this Court in this regard. So also, necessary directions for speedy and expeditious disposal of the case can be given so as to ensure that no prejudice or injustice is caused to either party. So also, necessary directions for speedy and expeditious disposal of the case can be given so as to ensure that no prejudice or injustice is caused to either party. f) Insofar as the decision of the Madras High Court in the case of LGR Enterprises supra is concerned, with due respect to the learned Single Judge, the said decision is not applicable to the aforesaid facts and circumstances of the instant case and as such, no reliance can be placed upon the said decision by the petitioner in support of his contentions. In the result, I pass the following order. ORDER i. Criminal Petition is hereby dismissed; ii. The impugned order dated 02.07.2019 passed in C.C. No. 532/2019 (P.C. No. 33/2019) by the learned JMFC Court-1, Hubballi is hereby confirmed; iii. The petitioner-accused is granted a further period of 60 days from this day to deposit 20% of the cheque amount before the trial Court; iv. It is directed that upon such deposit being made, the trial Court shall invest the same in fixed deposit in any nationalized bank immediately till disposal of the case in the trial Court; v. It is made clear that neither the respondentcomplainant nor the petitioner-accused shall be entitled to withdraw the said amount deposited by the petitioner-accused till disposal of the case by the trial Court; vi. It is needless to state that after disposal of the case, trial Court shall follow the procedure prescribed u/s 143-A of N.I. Act for the purpose of disbursement of the amount in deposit either to the complainant or the accused as the case may be; vii. Having regard to the facts and circumstances of the case, the trial Court shall endeavour to dispose of the case as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order; it is made clear that both parties shall co-operate with the trial court in expeditious disposal of the case as indicated supra; viii. All rival contentions on merits between the parties are left open to be decided by the trial Court; Subject to the aforesaid directions, the petition stands dismissed.