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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28^TH DAY OF JANUARY, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL PETITION No.3991/2020

BETWEEN:

Dr. SHREEYANSH RAYAPPA NANDESHWAR,

S/O RAYAPPA LAXMANA RAO NANDESHWAR,

AGED ABOUT 59 YEARS,

R/O NO.765/2D, 8RATNATRAY9,

BHAGYA NAGAR, 2^ND CROSS,

BELGAUM - 591 006.

& PETITIONER

(BY SRI. VARDHAMAN V. GUNJAL, ADVOCATE)

AND:

Dr. PRAKASH PONDE,

S/O. SUBRAO PHONDE,

AGED ABOUT 56 YEARS,

AGRICULTURIST,

R/O. PLOT NO.1, SAMARTH COLONY,

HINDALGA ROAD,

BELGAVI-591 108.

... RESPONDENT

(BY SRI. SANDESH J. CHOUTA, ADVOCATE FOR

SRI. CHANDRASHEKAR R.P, ADVOCATE)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE

2^ND

ADDITIONAL

DISTRICT

AND

SESSIONS

JUDGE,

CHIKKAMAGALURU PASSED IN CRL.R.P.NO.177/2019 DATED

04.03.2020 ORDER UPHOLDING THAT THE SUMMONS ISSUED

R

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BY 2^ND ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU

IN PCR NO.252/2019 AND C.C.NO.690/2019 DATED 08.05.2019.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 08.01.2021, THIS DAY, THE COURT

PRONOUNCED THE FOLLOWING:

O R D E R

This petition is filed under Section 482 of Cr.P.C. praying

this Court to set aside the order dated 04.03.2020 passed in

Crl.R.P.No.177/2019 by the II Additional District and Sessions

Judge at Chikkamagaluru, upholding the issuance of summons

issued by the II Additional Civil Judge & JMFC., Chikkamagaluru,

in

PCR

No.252/2019

subsequently

numbered

as

C.C.No.690/2019 vide order dated 08.05.2019.

2.

The factual matrix of the case is that, the respondent

herein had filed a private complaint under Section 200 of Cr.P.C,

for the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881, (8NI Act9 for short), contending that the

petitioner herein had borrowed a sum of Rs.35,00,000/- from

the respondent herein as a hand loan. When demanded the

repayment of the said amount, the petitioner herein has issued a

self cheque dated 22.12.2018 for a sum of Rs.5,00,000/-

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towards part payment and assured that the same will be

honoured upon presentation. But the same was returned with an

endorsement as 8account closed9 and hence, the proceedings

under Section 138 of the NI Act.

3.

The learned Magistrate after perusing the materials

on record and after recording of sworn statement of the

complainant took the cognizance of offence punishable under

Section 138 of the NI Act. Being aggrieved by the said order, he

had preferred Crl.R.P.No.177/2019 and the Revisional Court also

confirmed the order of the Magistrate in coming to the

conclusion that the grounds, which have been urged, cannot be

adjudicated conclusively at the stage of issuance of process and

the scope of revision is also limited. The allegations made in the

complaint on the face of the record have to be accepted and

falsity cannot be entertained by the Revisional Court. Hence,

the present petition is filed.

4.

The grounds urged in this petition are that,

undisputedly the alleged date of advancement of loan was

barred by limitation. Without any material, a self cheque has

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been treated as an acknowledgement when it is not even

pleaded by the complainant. Thereupon no element of violation

of Section 138 of the NI Act, taking cognizance and issuing

summons is per-se illegal and a manifest error is apparent on

the face of the record. It is also contended that no detailed order

is required to pass at the time of taking cognizance but the short

cut adopted by the Magistrate is also not acceptable and he did

not apply his mind on the material available on record.

5.

The learned Magistrate before directing to registering

the complaint and issue summons, has not addressed himself on

the legal question whether there is criminal liability on the part

of the petitioner to attract the provisions of Section 138 of the NI

Act. It is also contended t