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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 30^TH DAY OF AUGUST, 2019

BEFORE

THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION No. 9170/2017

BETWEEN:

1.

Sri.Rizwan-ul-Haq,

Aged about 26 years,

S/o C.K.Zaheer Ahmed,

M/s.Shama Traders,

Market Road,

Chikkamagaluru – 577 101.

2.

Sri.C.Z.Muzamil Pasha @

Mohammed Jaffar,

Aged about 34 years,

S/o C.K.Zaheer Ahmed,

M/s.Shama Traders,

Market Road,

Chikkamagaluru – 577 101.

... Petitioners

(By Sri.N.Shankaranarayana Bhat, Advocate)

AND:

Sri.Mohammed Aslam

S/o Mohammed Ameer,

Aged about 45 years,

Proprietor,

M/s.Aslam Traders,

Rice Business,

2

Shariff Road,

Chikkamagaluru – 577 101.

... Respondent

(By Sri.T.R.Arun Kumar, Advocate)

This Criminal Petition is filed under Section 482 of

Cr.P.C praying to set aside the order of the Court of the

Senior Civil Judge and C.J.M, Chikkamagaluru dated

25.09.2017 in C.C.No.1113/2017 directing the registration

of criminal case against the petitioners for the alleged

offence P/U/S 420 read with 34 of IPC and to quash the

entire proceedings in the above said case.

This Criminal petition coming on for Admission, this

day, the Court made the following:

O R D E R

Heard learned counsel for petitioners and learned

counsel for respondent. Perused the records.

2.

Petitioners have called in question the legality of

criminal

proceedings

initiated

against

them

in

C.C.No.1113/2017 for the alleged offences punishable under

Sections 420 read with 34 of IPC on the ground that the

prosecution initiated against the petitioners is hit by Section

300 of Cr.P.C.

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3.

Learned counsel for petitioners at the outset

submitted that in respect of the same set of facts,

respondent had filed a criminal complaint against petitioner

No.1(accused No.1) under Section 138 of the Negotiable

Instruments Act. The said complaint was later withdrawn

by the respondent. The withdrawal of the complaint has the

effect of acquittal of the accused. Under the said

circumstances, respondent is not entitled to initiate

separate prosecution on the same set of facts, as the same

is hit by Section 300 of Cr.P.C. In support of his

submission, learned counsel has placed reliance on the

decision of the Hon’ble Supreme Court in the case of Kolla

Veera Raghav Rao V/s Gorantla Venkateswara Rao &

another reported in AIR 2011 SC 641.

4.

Learned

counsel

appearing

for

respondent

argued in support of the impugned action contending that

the allegations made in both the proceedings in C.C

No.489/2013 (PCR No.299/2013) and C.C No.1113/2017

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(PCR No.2/2016) are distinct and separate. C.C No.

489/2013 was filed only against petitioner No.1 (accused

No.1) for dishonour of the cheque. Since the said cheque

was not issued by him, proceedings were later withdrawn.

During

the

pendency

of

the

said

proceedings,

the

respondent/complainant having come to know that the

petitioners had resorted to fraud under Section 420 IPC,

Section 300 of Cr.P.C is not applicable to the facts of the

case and thus, he sought for dismissal of the petition.

5.

I have considered the submissions and perused

the records.

6.

It is not in dispute that the complainant/

respondent herein filed a complaint in C.C.No.489/2013

against petitioner No.1 (accused No.1)-Sri.Rizwan-ul-Haq

alleging that the cheque issued by petitioner No.1 was

dishonoured for insufficiency of funds. A reading of the said

complaint indicates that the complainant proceeded on the

basis that the said cheque was actually drawn by petitioner

No.1. But during the course of trial, he having come to

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know that the said cheque was not drawn by petitioner No.1

(accused No.1), the instant complaint has been filed. The

allegations made in the instant complaint are based on

cheating and fraud.