K.S. Thimmappa Rai Vs. A.R. Sadanada - Court Judgment

Excerpt:
- karnataka co-operative societies act, 1959. [k.a. no. 11/1959]. section 38, proviso [as amended by k.a. no. 6 of 2001 w.e.f. 1.4.2001]: [a.s. bopanna, j]exemption from compulsory registration of instruments relating to housing co-operative society held, exemption is restricted to instruments relating to shares and debentures issued by the society. in case of instruments relating to debentures issued by the society, exemption is not available if such instrument creates or assigns right, title or interest to or in immovable property. the amendment is retrospective and is only clarificatory. concept of tenant co-partnership housing society is alien to act and hence act does not provided for such societies. when the society has not been registered, its bye-laws cannot be altered to bring it under that category, which is not provided for in the act. -- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 33, 67 & 67-b: impounding of document held, in proceedings under sections 67 and 67-b, the authorities are competent to impound such documents, even copies of them, whether certified or not, for enforcing payment of stamp duty/penalty. -- section 39(1)(b): demand for payment of stamp duty held, the date of transaction is the basis for charging the duty i.e., on the market value of the property at relevant point of time. manner of computation should be indicated in the demand notice. demand not satisfying to the requirement is to bad in law. -- section 46-a: limitation for recovering stamp duty held, question of limitation would arise for consideration only when the demand is made and recovery is enforced and not till them. - even after receipt of statutory notice petitioner failed to pay the amount. traders) has held at page 3117 of cri lj :from the fact that the magistrate on receipt of the complaint directed that it be registered and then adjourned the case to another date and on that date as well as on subsequent date examined the complainant would clearly indicate that he had taken cognizance of the offence and had decided to take further steps under chapter xv.order1. being aggrieved by the order passed by the learned munsiff and jmfc, k. r. nagar in cc. no. 247/97 taking cognizance of the offence under s. 138 of the negotiable instruments act and directing to issue process to the accused therein, he preferred this petition under section 482, cr. p.c.2. notice was issued to the respondent and he appeared. heard the learned advocates appearing for the parties.3. the brief facts of the case are :-the respondent has lodged a complaint under s. 200, cr. p.c. against the petitioner herein on the ground that two cheques issued by the petitioner were dishonoured when presented before the bank. even after receipt of statutory notice petitioner failed to pay the amount. therefore, he filed complaint for the alleged offence u/s. 138 of the negotiable instruments act. learned magistrate after recording the sworn statement directed to issue the process to the accused by his order dt. 21-1-1997 the said order was questioned by the petitioner in crl. p. no. 570/97 before this court. this court by its order dt. 31-3-1997 set aside the order and remitted the matter with a direction, the operative portion of which reads as :- 'both the grounds raised by the petitioner is upheld. in the result, this petition is allowed and the impugned order passed by the court below taking cognizance and issuing summons to the petitioner is set aside and the matter is remitted back to the learned magistrate to proceed with the matter in accordance with law from the stage when the complaint was presented before him. petition, is accordingly, allowed.'after receipt of this remand order, the learned magistrate recorded the sworn statement and passed a considered order holding 'i have taken cognizance of the offence and directing issue of process to the accused', the said order is questioned in this petition.4. learned counsel for the petitioner at the very outset submitted that the magistrate has not taken cognizance but proceeded to record sworn statement. he has taken cognizance only after recording the sworn statement which is contrary to law, therefore, it is liable to be set aside. repelling this argument learned counsel for the respondent submitted when once the magistrate proceeds recording the sworn statement it is deemed that he has taken cognizance of the offence. in view of this it is now necessary to find out the law on this point. their lordships of the supreme court in a decision reported in : 1976crilj1361 (devarapalli lakshminarayana reddy v. v. narayana reddy) held that 'when a magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. if on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint for investigation under s. 156(3) will be conducive of justice and save the valuable time of the magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence himself.now whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action if any, taken by the magistrate. broadly speaking when on receiving a complaint, the magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in chapter xv of the code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(1)(a). if, instead of proceeding under chapter xv, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.'5. in this case the magistrate has proceeded to record the sworn statement of the complainant. under that circumstance, it is deemed that the magistrate has taken cognizance of the case. it is also held by the supreme court in a decision reported in : 1996crilj408 (anil saran v. state of bihar), wherein it is held that :'it is now settled law that the court takes cognizance of the offence and not the offender. as soon as the magistrate applied his judicial mind to the offence stated in the complaint or the police report etc. cognizance is said to be taken. cognizance of the offence takes place when the magistrate takes judicial notice of the offence.'6. further this court in a decision reported in ilr 1994(4) kant 2991 : (1994 cri lj 3115)(samant v. k.g.n. traders) has held at page 3117 of cri lj :- 'from the fact that the magistrate on receipt of the complaint directed that it be registered and then adjourned the case to another date and on that date as well as on subsequent date examined the complainant would clearly indicate that he had taken cognizance of the offence and had decided to take further steps under chapter xv. mere fact that while passing a formal order issuing process the magistrate has again stated that cognizance is taken does not take away the effect of his earlier action which indicated that he had already taken cognizance. the second order regarding cognizance is only superfluous and this cannot vitiate the entire proceedings.'in view of the consistent judgment of apex court, just because (magistrate) has not stated taken cognizance, but proceeded to record sworn statements it cannot be said that magistrate has not taken cognizance. on the other hand the magistrate proceeded to record sworn statement and he has dealt with the matter under chapter xv of cr. p.c. it is, therefore, deemed (that) he has taken cognizance of the offence. hence the argument of the learned counsel for the petitioner is unsustainable.7. learned counsel for the petitioner has taken me through the impugned order passed by the learned magistrate and pointed out certain mistakes here and there. however, those mistakes would not go to the root of case to invalidate the entire proceedings.8. the learned counsel for the petitioner further argued that petitioner had already informed the loss of cheque to the bank and hence the cheque was not honoured. such being the case, he submitted that no offence was committed by the petitioner. what had transpired between the petitioner and respondent are factual aspect which will have to be established by the respective parties. anyway when the cognizance was taken, those material was not available to the magistrate. in this petition this court is concerned only with regard to the material available before the magistrate with taking cognizance. the hon'ble supreme court has held, the high court while acting under section 482, cr. p.c., cannot go into the pros and cons of the case : 1996crilj1354 . it is open to the petitioner to set up his defence before the magistrate at the time of enquiry or trial.9. for the foregoing reasons this petition fails and accordingly dismissed.10. petition dismissed.

Judgment:
ORDER

1. Being aggrieved by the order passed by the learned Munsiff and JMFC, K. R. Nagar in CC. No. 247/97 taking cognizance of the offence under S. 138 of the Negotiable Instruments Act and directing to issue process to the accused therein, he preferred this petition under Section 482, Cr. P.C.

2. Notice was issued to the respondent and he appeared. Heard the learned Advocates appearing for the parties.

3. The brief facts of the case are :-

The respondent has lodged a complaint under S. 200, Cr. P.C. against the petitioner herein on the ground that two cheques issued by the petitioner were dishonoured when presented before the Bank. Even after receipt of statutory notice petitioner failed to pay the amount. Therefore, he filed complaint for the alleged offence u/S. 138 of the Negotiable Instruments Act. Learned Magistrate after recording the sworn statement directed to issue the process to the accused by his order dt. 21-1-1997 the said order was questioned by the petitioner in Crl. P. No. 570/97 before this Court. This Court by its order dt. 31-3-1997 set aside the order and remitted the matter with a direction, the operative portion of which reads as :-

'Both the grounds raised by the petitioner is upheld. In the result, this petition is allowed and the impugned order passed by the Court below taking cognizance and issuing summons to the petitioner is set aside and the matter is remitted back to the learned Magistrate to proceed with the matter in accordance with law from the stage when the complaint was presented before him.

Petition, is accordingly, allowed.'

After receipt of this remand order, the learned Magistrate recorded the sworn statement and passed a considered order holding 'I have taken cognizance of the offence and directing issue of process to the accused', the said order is questioned in this petition.

4. Learned counsel for the petitioner at the very outset submitted that the Magistrate has not taken cognizance but proceeded to record sworn statement. He has taken cognizance only after recording the sworn statement which is contrary to law, therefore, it is liable to be set aside. Repelling this argument learned Counsel for the respondent submitted when once the Magistrate proceeds recording the sworn statement it is deemed that he has taken cognizance of the offence. In view of this it is now necessary to find out the law on this point. Their Lordships of the Supreme Court in a decision reported in : 1976CriLJ1361 (Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy) held that 'when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint for investigation under S. 156(3) will be conducive of justice and save the valuable time of the Magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence himself.

Now whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action if any, taken by the Magistrate. Broadly speaking when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under S. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of S. 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.'

5. In this case the Magistrate has proceeded to record the sworn statement of the complainant. Under that circumstance, it is deemed that the Magistrate has taken cognizance of the case. It is also held by the Supreme Court in a decision reported in : 1996CriLJ408 (Anil Saran v. State of Bihar), wherein it is held that :

'it is now settled law that the Court takes cognizance of the offence and not the offender. As soon as the Magistrate applied his judicial mind to the offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence.'

6. Further this Court in a decision reported in ILR 1994(4) Kant 2991 : (1994 Cri LJ 3115)(Samant v. K.G.N. Traders) has held at page 3117 of Cri LJ :-

'From the fact that the Magistrate on receipt of the complaint directed that it be registered and then adjourned the case to another date and on that date as well as on subsequent date examined the complainant would clearly indicate that he had taken cognizance of the offence and had decided to take further steps under Chapter XV. Mere fact that while passing a formal order issuing process the Magistrate has again stated that cognizance is taken does not take away the effect of his earlier action which indicated that he had already taken cognizance. The second order regarding cognizance is only superfluous and this cannot vitiate the entire proceedings.'

In view of the consistent judgment of Apex Court, just because (Magistrate) has not stated taken cognizance, but proceeded to record sworn statements it cannot be said that Magistrate has not taken cognizance. On the other hand the Magistrate proceeded to record sworn statement and he has dealt with the matter under Chapter XV of Cr. P.C. It is, therefore, deemed (that) he has taken cognizance of the offence. Hence the argument of the learned Counsel for the petitioner is unsustainable.

7. Learned counsel for the petitioner has taken me through the impugned order passed by the learned Magistrate and pointed out certain mistakes here and there. However, those mistakes would not go to the root of case to invalidate the entire proceedings.

8. The learned Counsel for the petitioner further argued that petitioner had already informed the loss of cheque to the Bank and hence the cheque was not honoured. Such being the case, he submitted that no offence was committed by the petitioner. What had transpired between the petitioner and respondent are factual aspect which will have to be established by the respective parties. Anyway when the cognizance was taken, those material was not available to the Magistrate. In this petition this Court is concerned only with regard to the material available before the Magistrate with taking cognizance. The Hon'ble Supreme Court has held, the High Court while acting under Section 482, Cr. P.C., cannot go into the pros and cons of the case : 1996CriLJ1354 . It is open to the petitioner to set up his defence before the Magistrate at the time of enquiry or trial.

9. For the foregoing reasons this petition fails and accordingly dismissed.

10. Petition dismissed.