M/S Mesh Tarans Gear Pvt. Ltd. v/s Dr. R. Parvathreddy

M/S Mesh Tarans Gear Pvt. Ltd. v/s Dr. R. Parvathreddy

FACTS OF THE CASE:

• Respondent initiated proceedings against the petitioner for an offence punishable u/s 138 of the negotiable instruments act, 1881.
• It was alleged that the petitioner’s father had borrowed a sum of Rs. 5,00,000 on 27/11/1996. The amt. was not returned despite repeated demands made. 
• It is also alleged that the petitioner had acknowledged the debt owed by his father to the respondent on 25/11/1999. 
• The respondent issued a cheque dated 16/6/2006 for a sum of 5,00,000 drawn on Sahmroa Vittal co-operative bank ltd, Bengaluru. 
• The same had been presented for encashment by his banker M/s Vijaya bank, Raichur. 
• The respondent is said to have made a demand for payment claiming that the cheque he had given was dishonored.
• The petitioner is accused of an offence punishable under Section 138 of the NI Act.
• The court followed all legal processes but allowed the complainant to file an affidavit of his sworn statement and summoned the petitioner. 
• The petitioner pleaded guilty and was granted bail. 
• The matter was set for complainants’ evidence at the stage where the petitioner plead guilty and was granted bail.

PETITIONER’S ARGUMENTS

Sections 138 to 147 of the NI Act prescribe a hybrid procedure as to manner in which the same should be adjudicated in variance with the manner in which u/s 200 Cr.P.C is to be dealt with. It was contended that every initiation of proceedings u/s 200 Cr.P.C for an offence punishable u/s 138 of the NI Act was without jurisdiction and on that sole ground the proceedings before the court ought to be quashed. It is next focused on Sections 4 and 5 of Cr.P.C. With lieu of these sections, it is contended that an offence punishable under section 138 of the NI Act is tried in the manner as regulated under the provision of the NI Act, except those provisions of sections 262 to 265 of the Cr.P.C shall as far as may apply to such trials. In the absence of a specific provision to contrary the provisions of Cr.P.C shall not affect special procedure and powers under the NI act. It is contended that a complaint filed under section 200 Cr.P.C for an offence punishable under section 138 of the NI Act attracts the rigors of the pretrial procedure contemplated under the provisions of the Cr.P.C. Whereas the intent of the legislation is that where any cheque drawn by a person in favour of another for the discharge of any debt or other liability is returned unpaid by the bank either on account of insufficiency of funds in the account of that indicated amount in the cheque exceeds the amount arranged to be paid from that account.

RESPONDENT’S ARGUMENT.

The matter was posted to respondent to tender evidence on his complaint when the petitioner having accused in the jurisdiction the court below without demur can have no further grievance in respect of further proceedings to ensure the court when all defenses are available. It is contended that the several grounds raised in the petition in relation to factual aspects are disputed hence ought to be tested at trial and cannot be the subject matter of adjudication in the revision petition. The counsel for respondents had hence s+eek that the petition be dismissed with costs. 

JUDGEMENT 

The complainant is not inclined to satisfy the requirements of lodging the very complaint. If the complaint is not able to satisfy the court as to the reason for such non-compliance the court shall not take cognizance of the complaint. In the absence of any indication as to the manner in which the competent court should deal with a complaint under section 138 of the NI Act involving a drawer cheque residing outside its jurisdiction, it would seem that the court must ordinarily come to a conclusion as to whether there is sufficient ground to proceed against him only after conducting an enquiry u/s 202 of the Cr.P.C.

The defenses that are available to the petitioner are not taken away hence there is no further prejudice caused to the petitioner accordingly the petition was dismissed. 

written by KAUSHAL S S, 3^rd SEM, School of legal studies, REVA University. Intern @ Legal Vidhiya.

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