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M.o.h. Iqbal versus m. Uthaman and anr. On 18 june, 1993 equivalent citations 199582compcas726(ker) author k.t. Thomas bench k.t. Thomas judgment k.t. Thomas, j. 1.

The petitioner is the managing director of a public limited company.

He is being prosecuted for the offence under section 138 of the negotiable instruments act, 1881 (for short the act), on the allegations, inter alia, that he issued a cheque in favour of the complainant (first respondent herein) which was dishonoured by the drawee-bank as the drawer did not have necessary amount in his account, and that a notice was issued to the petitioner to which no reply was even sent.

As the magistrate before whom the complaint was filed took cognizance of the offence and issued process against the petitioner, he filed this petition under section 482 of the code of criminal procedure, 1973 (for short the code), for quashing the complaint.

Three vivid points have been raised by learned counsel for the petitioner in support of his contention that the complaint is liable to be quashed, they are (1) the offence was committed by the company and not the petitioner (2) prosecution of the petitioner without the company being made an accused is not sustainable and (3) even if prosecution can be launched against the petitioner the present complaint is devoid of necessary averments to constitute the offence under section 138 of the act.

Regarding the first contention, it has to be pointed out that the complaint proceeds on the premise that the cheque was issued by the petitioner.

Hence, it is not proper to quash the complaint at the initial stage by accepting the contention that the petitioner has not drawn the cheque, the second contention cannot be upheld in view of the decision of the court in criminal miscellaneous case number 129 of 1993, dated june 9, 1993, which repelled a similar contention holding that when the offence was committed by a company, either the company alone or the person in charge of the business of the company alone, or both of them together, can be prosecuted for the offence under section 138 of the act.

In support of the said view this court relied on the supreme court decision in sheoratan agarwal versus state of m. P., air 1984 supreme court 1824.m.o.h.

Iqbal versus m. Uthaman and anr.

On 18 june, 1993 That the complaint does not reveal that the petitioner failed to make payment within fifteen days of the receipt of the notice.

No doubt, the offence under section 138 of the act is completed only when there is failure to make payment of the amount of money to the payee within fifteen days of the receipt of-notice.

What is stated in para 7 of the complaint is the following complainant has issued notice on june 4, 1991, to the accused through his advocate intimating that the cheque has been dishonoured and for return of the amount with interest.

The accused had received the notice on june 7, 1991, but he has not cared to send any reply also. 6.

It is true that the complaint does not contain in so many words that the petitioner did not make payment of the amount of money after receipt of notice.

Even so, one can reasonably make out from the complaint that the complaint was filed as the petitioner did not make any payment or send any reply to the notice.

But, according to learned counsel, the court cannot read anything like that into the complaint, so long as the complaint did not expressly contain such an averment.

Learned counsel laid emphasis on section 142(a) of the act which says that notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974), no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing, made by the payee or, as the case may be, the holder in due course of the cheque.

The argument is that since the legislature imposed a prohibition against taking cognizance unless certain conditions are satisfied and one such condition being that there must be a complaint in writing it means that the complaint should contain all the necessary facts to make out the offence.

The argument appears to be that alt the elements of the offence must be categorised in express terms in the complaint.

For further support of the contention learned counsel invited my attention to a recent decision rendered by manoharan j.

In ashok versus vasudevan moosad 1993 1 klt 671 1995 82 comp cas 665 in which the complaint was dismissed for want of the allegation that the cheque bounced for want of sufficient funds in the account of the drawer.

I have no doubt that when there is no case for the complainant that the dishonour of the cheque was either because of insufficiency of amount in his account or that the amount covered by the cheque exceeded the amount arranged to be paid from that account, then no offence is made out and the complaint which is bereft of such basic allegation is liable to be dismissed.

But the question here is different.

Is it imperative that all the ingredients of the offence as such should be specifically and expressly stated in the complaint ?

is it not sufficient that the court could make out such ingredients from the body of the complaint and the papers accompanying jt ? 9.

In delhi municipality versus ram krishan, air 1983 supreme court 67, 70, fazal ali j.

Has observed that it is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.

In other words, the test is that taking the allegations and the complaint as they are without adding or subtracting anything, if no offence is made out, then the high court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present code.

in madhavrao versus m.o.h. Iqbal versus m. Uthaman and anr.

On 18 june, 1993 That when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations made would prima facie establish the offence.

Shri p. Vijaya bhanu, learned counsel for the petitioner, cites the above decisions to bolster up his contention that in the absence of averments in the complaint that the petitioner failed to make payment of the amount of money the court cannot read anything into it.

Section 2(d) of the code defines complaint as any allegation made orally or in writing to a magistrate with a view to his taking action under this code that some person, whether known or unknown has committed an offence but does not include a police report.

Of course, an oral complaint is not useful for the offence under section 138 of the act, since section 142 of the act forbids the court to take cognizance of the offence except upon a written complaint.

Section 190 of the code empowers a magistrate to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. 11.

A combined reading of the relevant provisions would amplify the position that if the facts set out in a complaint would constitute the offence alleged to have been committed by some person, the magistrate has power to take cognizance of the offence under section 138 of the act.

It must be borne in mind that no form is prescribed for drafting a complaint.

A meticulous scrutiny of the complaint may not be warranted at the initial stage to ascertain whether all the elements of the offence have been expressly categorised therein.

It is enough that a pragmatic assessment is made after perusing the complaint to decide whether the complaint discloses the offence under section 138 of the act.

If the complaint is prepared by a lay man one cannot expect skilful draftsmanship being reflected therein.

It may be inartistically worded or clumsily prepared, yet it may contain the allegations from which a magistrate can see the offence disclosed.

Dismissing such complaint on the premise that elements of the offence have not been expressly categorised in the complaint may result in miscarriage of justice.

Hence, the court has a duty to peruse the complaint with a pragmatic perception, 12.

Speaking for a division bench of this court, varadaraja iyengar j.

In kunju moideen versus kandan, air 1959 ker 146, has pointed out that (at p. 148) it is nowhere insisted that the complainant must categorise the elements of the offence sought to be charged against the accused.

Hidayattullah c. J., in bhimappa versus laxman, air 1970 supreme court 1153, 1156, has observed that no form is prescribed which the complaint must take.

it may only be said that there must be an allegation which prima facie discloses the commission of an offence from the necessary facts for the magistrate to take action.

When the complaint in the present case is read and understood from the above angle, one can discern therefrom with reasonable accuracy that the complaint was filed as the petitioner failed to make payment of the money even after receipt of notice.

For the aforesaid reasons i am not inclined to quash the complaint. 14. Criminal miscellaneous case is accordingly dismissed.m.o.h. Iqbal versus m. Uthaman and anr.

On 18 june, 1993

G.kantharaj versus manu gowda on 3 october, 2020 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 3rd

day of october - 2020 present sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city.

C.c.no.162252017 judgment under section 355 of code of criminal procedure complainant g.kantharaj, so.lte.gangadharappa, aged about 47 years, rat no.2, kalabhirava nilaya, 2nd main, 6th cross, subbanna garden, vijayanagar, bengaluru-40.

(rep. By sri.s.yathiraj, adv.) vs accused manu gowda, so.b.mahadev, aged about 32 years, partner of ms. Mahashila cinebandha, rat.

No.352, 2nd main, 8th cross, rajajinagar, hbcsl, nagarbhavi, bengaluru-91. (rep.by sri.s.m.biradar, adv.) offence complained of usection 138 of negotiable instruments act.

Plead of the accused not guilty. Final order accused is acquitted. Date of order 03.10.2020. (shridhara.m) xxiii addl.cmm., bengaluru.

Judgment 2 c.c.no.162252017 judgment the complainant has presented the instant complaint against the accused on 31.05.2017 under section 200 of code of criminal procedure for the offence punishable under section 138 of negotiable instruments act, for dishonour of cheque of rs.10 lakhs.g.kantharaj versus manu gowda on 3 october, 2020 The complainant has submitted that, the accused had availed a hand loan of rs.10 lakhs by way of cash from the complainant on 19.04.2016 for the purpose of his business of production of feature film and accused had undertaken to repay the same within a year.

For repayment of the said hand loan, the accused had issued a post dated cheque bearing no.522010 for sum of rs.10 lakhs dated27.03.2017 drawn on vijaya bank, subramanyanagar branch, bengaluru and requested to present it on the said date.

The complainant has further alleged that, at the request of accused, he presented the said cheque for encashment on 17.04.2017 through his banker viz., svc co-operative bank ltd., vijayanagar branch, bengaluru.

But as per endorsement dated19.04.2017, the said cheque came to be dishonoured for the reasons funds insufficient.

Judgment 3 c.c.no.162252017 the complainant has further contended that, immediately, thereafter he approached the accused and noticed him about the same, but he did not respond positively.

Hence, on 26.04.2017, the complainant through his counsel got issued legal notice to the accused by way of review petition a.d., but the same came to be returned with shara unclaimed on 04.05.2017.

The accused neither complied the demand made by the complainant nor issued reply.

Thereby, he committed the offence punishable under section 138 of negotiable instruments act. Hence, filed the present complaint. 3.

After receipt of the private complaint, my predecessor in office took the cognizance and got registered the pcr and recorded the sworn statement.

Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process. 4.

In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused.

Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence. 5.

To prove the case of the complainant, he himself choosen to examined as pw.1 and got marked exs.p1 to p5 and exs.p17 judgment 4 c.c.no.162252017 to p20.

To prove his case, the complainant has also choosen to examined the bank manager of vijaya bank by name smt.nandini as pw.2 and through her got marked exs.p6 to p9.

The pw.1 and pw.2 were subjected for cross-examination by the advocate for the accused. 6.

Thereafter, incriminating evidence made against the accused was recorded under section 313 of cr.p.c, wherein the accused denied the same and the answer given by him was recorded.

In support of the defence, the accused himself was examined as dw.1, but he not produced any documents in support of his defence and also subjected for cross-examination by the advocate for theg.kantharaj versus manu gowda on 3 october, 2020 Documents and same are marked as exs.p10 to p16.

7. I have heard the arguments of both side counsels. 8.

On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination 1) whether the complainant proves beyond the reasonable doubt that, the amount covered under the ex.p1-cheque is the existence of legally enforceable debt payable by the accused?

judgment 5 c.c.no.162252017 2) whether the complainant proves the guilt of the accused for the offence punishable under section 138 of negotiable instruments act?

3) what order? 9.

On appreciation of materials available on record, my findings on the above points are as under point no.1 in the negative point no.2 in the negative point no.3 as per final order, for the following reasons undisputed facts 10.

On going through the rival contentions of the parties, the fact that, the cause title addresses made mentioned in the present case pertaining to the complainant and accused is not in dispute.

The fact that, the accused being a proprietor of ms. Mahashila cinebandha, did the production of feature film is not in dispute.

The fact that, the accused himself is the proprietor of the said ms. Mahashila cinebandha is not in dispute.

The fact that, the accused had bank account in vijaya bank, by mentioned his name as ms. Mahashila cinebandha and he being a proprietor affixed his signature to the account opening judgment 6 c.c.no.162252017 form at ex.p6 is not in dispute.

The fact that, as found in ex.p7 the accused being a proprietor of ms. Mahashila cinebandha got registered his name before the karnataka film chamber of commerce as found in ex.p7 on 19.10.2015 under the producer category is not in dispute.

The fact that, the identity proof submitted by the accused at the time of opening of account in the bank of pw.2, the pan card, as per ex.p8 is not in dispute.

The fact that, as found in ex.p9(b) specimen signature card, the signature at ex.p9(a) and p9(b) belongs to the accused is not in dispute.

The fact that, questioned cheque at ex.p1 and the same is pertaining to his proprietary concern ms. Mahashila cinebandha and being the proprietor, the accused affixed his signature at ex.p1(a) is notg.kantharaj versus manu gowda on 3 october, 2020 Reasons funds insufficient is not in dispute.

The issuance of legal notice and its un-service as found in ex.p5 postal acknowledgment stated as unclaimed is not in dispute.

The fact that, as found in exs.p10 to p16 various persons have filed the separate cheque bounce cases against the accused is not in dispute.

As found in exs.p12 and p14, the accused and judgment 7 c.c.no.162252017 his proprietary concern got convicted in respect of admitted amount made mentioned therein in pursuance of compromise is not in dispute.

The fact that, one naveen has filed the separate cheque bounce case for rs.10 lakhs against the accused in c.c.no.162242017 is not in dispute. 11.

Point nos.1 and 2 since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.

The pw.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at exs.p1 to p5 and exs.p17 to p20, they are a) ex.p1 is the cheque bearing no.522010 issued by the accused for sum of rs.10 lakhs dated27.03.2017, drawn on vijaya bank, subramanyanagar branch, bengaluru.

B) ex.p1(a) is the alleged signature of accused. C) ex.p2 is the bank memo dated19.04.2017. D) ex.p3 is the legal notice dated26.04.2017.

E) ex.p4 is the postal receipt. F) ex.p5 is the unclaimed review petition a.d cover.

G) ex.p17 is the statement of account pertaining to complainant herein for the period from 01.03.2016 to 30.09.2016 issued by janatha seva co-operative bank ltd., bengaluru and judgment 8 c.c.no.162252017 h) exs.p18 to p20 are itr-v i.e., indian income tax returns verification forms for the assessment year 2016-17 to 2018-19 pertaining to complainant herein.

In the cross-examination of dw.1, complainant counsel got confronted seven documents and same are marked as exs.p10 to p16.

They are a) ex.p10 is the certified copy of private complaint in c.c.no.501832018 filed before learned 57th acmm, bengaluru by one pranesh rao against accused herein.g.kantharaj versus manu gowda on 3 october, 2020 Learned 26th acmm, bengaluru by surabhi souhardha credit co-op ltd., against accused concern herein.

C) ex.p12 is the certified copy of judgment in c.c.no.173452017 on the file of learned xxv acmm, bengaluru.

D) ex.p13 is the certified copy of private complaint in c.c.no.289082017 filed before learned 22nd acmm, bengaluru by one p.dhiraj against accused herein.

E) ex.p14 is the certified copy of judgment in c.c.no.252032017 on the file of learned iv addl. Scch and xxx acmm, bengaluru.

F) ex.p15 is the certified copy of private complaint in c.c.no.548932017 filed before learned 57th acmm, bengaluru by one varadarajalu gowda against accused herein and his concern and g) ex.p16 is the certified copy of private complaint in c.c.no.548942017 filed before learned 57th acmm, bengaluru by one rajesh.m against accused herein and his concern.