At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE H.P. SANDESH
For the Petitioner: Prasad K.R. Rao, M/s. Indraprastha Associates, Advocates. (Through VC). For the Respondent: M.B. Santhosh Kumar, Advocate.
(Prayer: This Criminal Petition is filed Under Section 482 of Cr.P.C. praying to quash the order dated 19.12.2019 thereby issuing summons to the petitioner, taking cognizance of the offence punishable under Section 138 of the N.I. Act and subsequently to quash all further proceedings in C.C.No.314/2020 pending on the file of the Hon'ble XIII A.C.M.M., at Bengaluru.)1. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.2. The factual matrix of the case is that the respondent initiated the proceedings under Section 138 of the Negotiable Instruments Act, 1881 against this petitioner and the Trial Judge after recording the sworn statement has taken the cognizance. Hence, the present petition is filed before this Court.3. Learned counsel appearing for the petitioner would submit that the Trial Judge has committed an error in taking cognizance. Though the complainant relied upon the cheque for a sum of Rs.1,50,000/- in the complaint and demand notice, he has demanded only Rs.1,20,000/-. Learned counsel in support of his contention relied upon the judgments of the Apex Court in the case of Suman Sethi v. Ajai K Churiwal and Another reported in (2000) 2 SCC 380 and in the case of Rahul Builders v. Arihant Fertilizers and Chemicals and Another reported in (2008) 2 SCC 321.4. Learned counsel for the petitioner referring to these two judgments would vehemently contend that the legal notice must be in respect of the cheque amount. In the notice, the claim made is only with regard to the amount of Rs.1,20,000/-. Hence, there is no legal compliance as such and the Trial Court ought not to have taken the cognizance.5. Per contra, learned counsel appearing for the respondent would submit that the accused/petitioner herein issued the cheque for a sum of Rs.1,50,000/- towards legally recoverable debt. Subsequent to the issuance of the cheque for a sum of Rs.1,50,000/-, the petitioner had made part payment of Rs.30,000/- and same has been stated in the notice. Hence, the very contention of the petitioner cannot be accepted.6. Having heard the submissions of the learned counsel for the petitioner and learned counsel for the respondent and so also the principles laid down in the judgments referred supra, the Apex Court discussed at para No.8 of the judgment in Suman Sethi's case with regard to the issuance of the notice and held that demand has to be made for the said amount i.e., cheque amount. Learned counsel also brought to the notice of this Court para No.11 of the judgment in Rahul Builders' case, wherein the Apex Court has also discussed the earlier judgment and come to the conclusion that if no such demand is made the notice no doubt would fall short of its legal requirement. There is no dispute with regard to the fact that there must be a demand as contemplated under the provisions of the N.I. Act before lodging the complaint. In the present case, notice has also been issued and the contents of the notice is also specific with regard to the issuance of cheque and also the payment made subsequent to the issuance of the cheque.7. The other contention of the learned counsel for the petitioner is that there is a material alteration in the cheque. Learned counsel appearing for the respondent would submit that only the date of issuance of the cheque has been altered and this petitioner has signed the cheque while changing the date and the said cheque bears the signature of the petitioner. The issue of material alteration also has to be considered during the course of the trial. Hence, I do not find any error committed by the Trial Court in taking cogniza
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nce against the petitioner. The grounds urged by the petitioner or the defence taken by the learned counsel for the petitioner has to be considered by the Trial Court only in the full fledged trial.8. In view of the discussions made above, I pass the following:-ORDERThe petition is dismissed.In view of dismissal of the main petition, I.As do not survive for consideration and the same stand disposed of.