Mohan Kumar Alias Manjunath Vs. State by Sriramapura Police Station - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] negotiable instruments act, 1881 - section 138 - offence under - complaint - judgment of conviction -appealed against to the court of sessions and subsequently made over to the presiding officer, fast track court-v, mysore - setting aside of judgment of conviction -appealed there against before the high court -interpretation made by the learned fast track judge with regard to the amendment brought to clause (b) of proviso to section 138 of the act is in the nature substitution and the amendment is deemed to have been brought into force from the inception of the act - consideration of - held, the object behind issuance of notice under clause (b) proviso to section 138 is to give intimation to the drawer of the cheque about dishonoring of the cheque and to give him an opportunity to pay the money covered under the cheque and thereby to avoid the criminal prosecution being launched against him. therefore, issuance of notice as required by clause (b) is mandatory. in this background, it is necessary to find out as to whether the amendment brought to clause (b) of the proviso to section 138 of the act with effect from 06.02.2003 by act no.55/2002 has retrospective effect. by this amendment brought into force from 06.02.2003, the requirement of issuing notice on the part of the drawer of the cheque within 15 days was substituted by 30 days. - no doubt, the words '15 days' occurring in clause (b) has been substituted by 30 days by the amendment. the question is as to whether by virtue of this amendment, the complainant could have issued a notice on 08.02.2003 though he had lost his right to issue such notice of demand on or after 29.01.2003. - there is nothing to indicate that the amendment brought to clause (b) of proviso to section 138 of the act has retrospective effect. merely because the said amendment was in the nature of substitution, it cannot have a retrospective effect, morose, when it relates to initiation of penal action. therefore, the high court is of the opinion that the amendment brought to clause (b) of the proviso to section 138 cannot be deemed to be in force from the inception and the amendment brought into effect subsequently cannot create a fresh cause-of-action for the complainant to issue notice and lodge a complaint based on such notice. - further held, the complainant received information from her banker on 13.01.2003 about the return of the cheque, cause-of-action for issue of notice began to run. as per the law that existed on that day, she was required to issue notice, within 15 days, which expired on 28.01.2003. on account of the inaction on the part of the complainant in not issuing notice of demand within 15 days from the date of the receipt of the information from her banker about the return of the cheque, she had lost her right to file a complaint for an offence under section 138 of the act, as there was no demand in writing made by her to the drawer of the cheque as required by law. - therefore, the complainant had no right to present a complaint. the amendment brought into force from 06.02.2003 did not give her a right to issue a notice of demand in respect of dishonoring of the cheque on 09.01.2003, which was intimated to her on 13.01.2003. therefore, the complaint lodged was defective and the learned magistrate could not have taken cognizance of the offence alleged. -judgment of acquittal passed by the fast track court is justified - negotiable instruments act, 1881 (act no. 55/2002 with effect from 6-2-2003) -clause (b) of proviso to section 138 -amendment by way of substitution - statutory provision -retrospective effect - discussed. (paras 13,14,15,16,20,21,22)order a.s. pachhapure, j.1. the petition is filed under section 439 of the criminal procedure code, 1973 requesting for grant of bail having been arrested for the offence punishable under section 302 of the indian penal code, 1860.2. the facts relevant for the purpose of this petition are as under:kantharaj alias kalaiah is aged about 26 years, who is the brother of deceased-nanjunda submitted a complaint to srirampura police station on 4-6-2009 at about 10.45 p.m. the facts of the complaint reveal that about 9.15 p.m. i.e., on the date of the incident a friend of the complainant by name srikanth called him on phone and informed that his brother has been assaulted by some persons near anjaneya temple, n.p. block library and asked him to come to the spot immediately. the complainant went there and found his brother having been dead due to the injuries sustained. on enquiry he came to know that at about 9.00 p.m., the petitioner quarrelled with the deceased and at once removed the knife and caused the assault on the chest and other parts of the body and that the deceased died at the spot. he also informed that this incident was witnessed by c.ws. 2, 3, 4 and 6. in the circumstances, he approached the police and stated that there was some political rivalry between the deceased and the petitioner. on the basis of the complaint, the police have registered a case for the above said offence and during investigation the petitioner is arrested.3. the petitioner submitted that he is innocent, he has not committed any crime and he has been falsely implicated due to political rivalry. he is ready and wiling to abide by any conditions that may be imposed by this court for grant of bail. on these grounds, he has sought for grant of bail.4. the learned government pleader has opposed the petition and submits that there are as many as 4 eye-witnesses i.e., c.ws. 2, 3, 4 and 6 who have witnessed the incident of causing assault by the petitioner to the deceased with knife and that the deceased died at the spot due to the injuries sustained. he also submits that the investigation is completed and charge-sheet has been filed and the bail application filed by the petitioner after filing of the charge-sheet has been rejected by the trial court. he further submits that there is possibility of the petitioner causing threat, force or coercion to the prosecution witnesses and it is in the interest of justice and equity, the bail has to be rejected.5. i have heard the learned counsel for the petitioner and also the learned government pleader.6. the point that arises for my consideration is:whether the petitioner is entitled to the bail sought for?7. the learned counsel for the petitioner submits that the petitioner is innocent and he has been falsely implicated due to political rivalry and that he has no criminal antecedents. further submits that the petitioner is ready and willing to abide by any conditions that may be imposed by this court for grant of bail.8. the learned government pleader has opposed the petition on the grounds stated above.9. i have gone through the allegations made in the complaint and also the records made available.10. the perusal of the allegations made in the complaint and also the statement made by c.ws. 2, 3, 4 and 6 reveal that there was political rivalry and as on the date of the incident at about 9.00 p.m. the petitioner after raising quarrel with the deceased assaulted with knife and caused the injuries on the chest and other parts of the body and the deceased died at the spot due to the injuries sustained. so, there is prima facie material against the petitioner for the offence under section 302 of the ipc.11. furthermore, it is also the apprehension of the prosecution that if the petitioner is released on bail, he may cause threat, force or coercion to the prosecution witnesses and thereby the purpose of fair trial would be defeated in case if the witnesses do not support the case of the prosecution due to the threat or influence and the petitioner has not made out any such exceptional grounds for grant of bail. there are sufficient number of eye-witnesses who have seen the incident of causing the assault. so, there is prima facie material for the offence under section 302 of the ipc, which is punishable for imprisonment of life and in the absence of any exceptional circumstances, the bail cannot be granted. in the circumstances, i answer the point in negative and proceed to pass the following:

Judgment:
ORDER

A.S. Pachhapure, J.

1. The petition is filed under Section 439 of the Criminal Procedure Code, 1973 requesting for grant of bail having been arrested for the offence punishable under Section 302 of the Indian Penal Code, 1860.

2. The facts relevant for the purpose of this petition are as under:

Kantharaj alias Kalaiah is aged about 26 years, who is the brother of deceased-Nanjunda submitted a complaint to Srirampura Police Station on 4-6-2009 at about 10.45 p.m. The facts of the complaint reveal that about 9.15 p.m. i.e., on the date of the incident a friend of the complainant by name Srikanth called him on phone and informed that his brother has been assaulted by some persons near Anjaneya Temple, N.P. Block Library and asked him to come to the spot immediately. The complainant went there and found his brother having been dead due to the injuries sustained. On enquiry he came to know that at about 9.00 p.m., the petitioner quarrelled with the deceased and at once removed the knife and caused the assault on the chest and other parts of the body and that the deceased died at the spot. He also informed that this incident was witnessed by C.Ws. 2, 3, 4 and 6. In the circumstances, he approached the police and stated that there was some political rivalry between the deceased and the petitioner. On the basis of the complaint, the police have registered a case for the above said offence and during investigation the petitioner is arrested.3. The petitioner submitted that he is innocent, he has not committed any crime and he has been falsely implicated due to political rivalry. He is ready and wiling to abide by any conditions that may be imposed by this Court for grant of bail. On these grounds, he has sought for grant of bail.

4. The learned Government Pleader has opposed the petition and submits that there are as many as 4 eye-witnesses i.e., C.Ws. 2, 3, 4 and 6 who have witnessed the incident of causing assault by the petitioner to the deceased with knife and that the deceased died at the spot due to the injuries sustained. He also submits that the investigation is completed and charge-sheet has been filed and the bail application filed by the petitioner after filing of the charge-sheet has been rejected by the Trial Court. He further submits that there is possibility of the petitioner causing threat, force or coercion to the prosecution witnesses and it is in the interest of justice and equity, the bail has to be rejected.

5. I have heard the learned Counsel for the petitioner and also the learned Government Pleader.

6. The point that arises for my consideration is:

Whether the petitioner is entitled to the bail sought for?7. The learned Counsel for the petitioner submits that the petitioner is innocent and he has been falsely implicated due to political rivalry and that he has no criminal antecedents. Further submits that the petitioner is ready and willing to abide by any conditions that may be imposed by this Court for grant of bail.

8. The learned Government Pleader has opposed the petition on the grounds stated above.

9. I have gone through the allegations made in the complaint and also the records made available.

10. The perusal of the allegations made in the complaint and also the statement made by C.Ws. 2, 3, 4 and 6 reveal that there was political rivalry and as on the date of the incident at about 9.00 p.m. the petitioner after raising quarrel with the deceased assaulted with knife and caused the injuries on the chest and other parts of the body and the deceased died at the spot due to the injuries sustained. So, there is prima facie material against the petitioner for the offence under Section 302 of the IPC.

11. Furthermore, it is also the apprehension of the prosecution that if the petitioner is released on bail, he may cause threat, force or coercion to the prosecution witnesses and thereby the purpose of fair trial would be defeated in case if the witnesses do not support the case of the prosecution due to the threat or influence and the petitioner has not made out any such exceptional grounds for grant of bail. There are sufficient number of eye-witnesses who have seen the incident of causing the assault. So, there is prima facie material for the offence under Section 302 of the IPC, which is punishable for imprisonment of life and in the absence of any exceptional circumstances, the bail cannot be granted. In the circumstances, I answer the point in negative and proceed to pass the following: