IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8756/2015 BETWEEN:
SMT. B.S. LEELAVATHY SHETTY W/O B.R. KRISHNAPPA SHETTY, AGED ABOUT 58 YEARS, SRI KRISHNALEELA NILAYA, SANKAIGUDDA, BEJAI NEW ROAD, BEJAI POST, MANGALURU - 575003 ... PETITIONER AND:
(BY SMT. HALEEMA AMEEN, ADVOCATE FOR SRI VISHWAJITH SHETTY S., ADVOCATE) M/S. SUVEGA BUILDTECH PVT. LTD. NO.47, 2ND FLOOR, 15TH CROSS, MALLESHWARAM BENGALURU - 560 003.
REPRESENTED BY ITS DIRECTOR SRI M.VENKATESH, AGED ABOUT 55 YEARS.
... RESPONDENT (BY SRI B. L. NANDAKUMAR, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 29.4.2014 MADE IN C.C.NO.11408/2014 BY THE COURT OF XX A.C.M.M., BENGALURU REGISTERED FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND QUASH THE ENTIRE PROCEEDINGS IN THE 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 petitioner and learned counsel for respondent. Perused the records.
2. Respondent herein filed a complaint under Section 200 of Cr.P.C. seeking action against petitioner and two other accused persons for the alleged offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’).
3. The case of the complainant is that accused No.1 along with accused Nos.2 and 3 approached the complainant towards RMC Machinery business transaction and accordingly accused No.2 issued a cheque on behalf of accused No.1 Company bearing No.327691 dated 18.2.2012 for a sum of Rs.7,25,000/- drawn on Vijaya Bank, Bijai, Mangaluru and when the said cheque was presented for encashment, the same was dishonoured for insufficient funds.
4. The above averments on the face of it indicate that the cheque in question was issued on behalf of accused No.1 Company and the same was drawn by accused No.2 as its Managing Director. The petitioner herein is implicated in the alleged offence solely on the ground that she was the Director of accused No.1 Company. There are no averments whatsoever in the complaint that the petitioner herein was involved in the day-to-day affairs of the Company. In the absence of these necessary averments, there is no basis for the prosecution of the petitioner. It is trite law that prosecution under Sections 138 and 142 of the Act could be maintained only against the drawer of the cheque. The Directors of the Company would be made culpable, provided the Directors were in charge of and responsible for the conduct of the business of the Company. In the absence of any such material on record, prosecution of the petitioner is patently illegal and contrary to provisions of Sections 138 and 142 of the Act.
5. Consequently, petition is allowed. Proceedings pending on the file XX ACMM, Bengaluru in C.C.No.11408/2014 are quashed only insofar as the petitioner, namely, accused No.3 is concerned. The prosecution shall continue against the accused Nos.1 and 2 in accordance with law.
Sd/- JUDGE MD