Case Note & Summary
The petitioner, A Adinarayana Reddy, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) before the High Court of Karnataka at Bengaluru, challenging the order dated 20.04.2023 passed by the learned XII Additional Chief Metropolitan Magistrate, Bengaluru, in PCR No.12765/2020. The Magistrate had summarily dismissed the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), which pertains to the dishonour of cheques. The petitioner alleged that the respondents, S. Vijayalakshmi and M. Thippanna @ Thippaiah, had issued cheques towards discharge of a liability, which were dishonoured upon presentation. After issuing a legal notice as required under Section 138 of the NI Act, the petitioner filed the complaint. However, the Magistrate dismissed the complaint summarily without issuing process or summoning the respondents. The petitioner contended that the Magistrate failed to apply judicial mind and did not consider the evidence on record, including the cheques, bank endorsement, and legal notice. The High Court heard the arguments of the learned counsel for the petitioner, Sri. Sampat Anand Shetty, and noted that the respondents were not summoned by the trial court, hence notice to them was dispensed with. The court observed that the Magistrate's order was cryptic and did not reflect any application of mind. The High Court held that the Magistrate ought to have examined the complainant and his evidence before dismissing the complaint. Relying on the principles of Section 482 Cr.P.C., the court set aside the impugned order and remanded the matter back to the Magistrate for fresh consideration in accordance with law. The petition was allowed.
Headnote
A) Criminal Procedure Code - Section 482 Cr.P.C. - Inherent Powers - Quashing of Order - The High Court can exercise its inherent powers under Section 482 Cr.P.C. to set aside an order of the Magistrate dismissing a complaint under Section 138 of NI Act summarily without applying judicial mind and without considering the evidence on record. Held that the order of dismissal is illegal and liable to be set aside. (Paras 4-6) B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Summary Dismissal of Complaint - The Magistrate, before dismissing a complaint under Section 138 of NI Act, must examine the complainant and his evidence and apply judicial mind to the facts of the case. Summary dismissal without such examination is not sustainable. Held that the matter must be remanded back to the Magistrate for fresh consideration. (Paras 4-6)
Issue of Consideration
Whether the order passed by the learned Magistrate dismissing the complaint under Section 138 of NI Act summarily without considering the evidence on record is sustainable in law?
Final Decision
The High Court allowed the petition, set aside the order dated 20.04.2023 passed by the XII A.C.M.M., Bengaluru, in PCR No.12765/2020, and remanded the matter back to the Magistrate for fresh consideration in accordance with law.
Law Points
- Section 482 Cr.P.C. can be invoked to set aside an order of summary dismissal of a complaint under Section 138 of NI Act if the Magistrate fails to apply judicial mind and dismisses the complaint without considering the evidence on record
- The Magistrate must examine the complainant and his evidence before dismissing the complaint under Section 138 of NI Act
- The order of dismissal of complaint under Section 138 of NI Act without issuing process is revisable under Section 482 Cr.P.C.
