THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION Nos.2113 & 2114/2012 Date:17.07.2014 Between:
Smt. Jupalli Jyothi . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad And another.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION Nos.2113 & 2114/2012 COMMON ORDER:
As the parties in both the petitions are one and the same and the contentions are also same, these two petitions are disposed of by a common order.
2. Petitioner in Crl.P.No.2113/2012 is A3 in C.C.No.329/2011 on the file of VIII Special Metropolitan Magistrate, Rangareddy District, L.B.Nagar and the petitioner in Crl.P.No.2114/2012 is A3 in C.C.No.328/2011 on the file of VIII Special Metropolitan Magistrate, Rangareddy District, L.B.Nagar. Second respondent in both the petitions is the complainant in both the C.Cs.
3. Heard both sides.
4. Advocate for petitioner submitted that second respondent herein filed a complaint alleging that first accused in the said complaint, through its Directors; P.Viswa Prasad Reddy and Jupalli Jyothi (petitioner herein), placed credit orders for purchasing accessories of Air Conditioners as per their invoices and the complainant company supplied the same to the accused company regularly as per their order under various invoices since last eight years and the first accused company through its directors used to make payments both in Indian rupees as well as Dirhams of UAE and as on 13-09-2010, an amount of 2,51,032.50 Dirhams was due and a statement of account was given, which is acknowledged by A1 and cheques were issued for discharge of the amount due and they were dishonoured and thereby, the petitioner and other accused have committed offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘N.I Act’). He submitted that petitioner was not the Director after 15-09- 2010 and by the date of issue of cheque, she is not a director, therefore, no prosecution is maintainable against the petitioner and the proceedings have to be quashed. On the other hand, advocate for second respondent submitted that this company is in UAE and as per the rules and law of UAE, there shall be two minimum directors for the first accused company, this petitioner and P. Viswa Prasad Reddy are the two directors and participation of the petitioner in the affairs of company is a matter of evidence, which cannot be decided at this stage. He submitted in a quash petition, the Court has to see whether the complaint allegations do attract any prima facie offence and if they attract any offence, such complaint cannot be quashed under Section 482 Cr.P.C.
5. I have perused the material papers filed on behalf of both sides. In the complaint, it is clearly averred that the petitioner as a director placed credit orders for purchasing accessories of Air Conditioners and the business transactions between the parties was since last eight years. It is also specifically averred in the complaint that second accused and third accused (petitioner herein) are in charge of affairs of first accused company and the cheques were issued as part payment of the amount due to the complainant. The main contention of the advocate for petitioner is that the petitioner is not an executant of the promissory note or the cheque, therefore, she cannot be fastened with liability for the affairs of the first accused company. Here what is required under the provisions of N.I Act is there must be an allegation against the accused persons who are the directors of the company that at the time of offence was committed, accused was in charge of, and was responsible to, the company for the conduct of the business of the company, and that accused has knowledge of the same. Here there is specific averment in the complaint as to the role of petitioner with the affairs of the company. Here the cheque is issued on behalf of the company though in the promissory note, it is mentioned that A2 executed it in his personal capacity but the fact remains that the cheque amount is towards the transactions of the company and not due to the complainant in the individual capacity. As rightly pointed out by Advocate for second respondent, these aspects are matter of evidence, which cannot be decided at this stage. It is well settled law that at the stage of 482 Cr.P.C., Court cannot weigh the evidence of both sides and it has to examine whether the allegations prima facie attract any offence or not. Here there are specific allegations in the complaint against the petitioner also, therefore, those aspects require enquiry.
6. One more objection raised on behalf of the petitioner is in respect of jurisdiction. Under Section 138 of N.I Act, complaint can be filed at any of places where the following acts occurred:-
“(1) Drawing of the cheque,
(2) Presentation of the cheque to the bank,
(3) Returning the cheque unpaid by the drawee bank,
(4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and
(5) Failure of the drawer to make payment within 15 days of the receipt of the notice.”
7. Admittedly, cheque was dishonoured within the jurisdiction of the Court, where the C.Cs are pending. Even this aspect also is a mixed question of fact and law, which has to be decided only after recording evidence.
8. For these reasons, I am of the view that there are no merits in the petitions and that the same are liable to be dismissed.
9. Accordingly, both the Criminal Petitions are dismissed directing the Court below to expedite the trial of C.Cs and dispose of them as expeditiously as possible, preferably within eight months from the date of receipt of this order and it shall consider the contentions of both parties without being influenced by any of the observations made above. However, considering the request of the petitioner, her presence is dispensed with for each and every adjournment. However, she shall appear as and when the trial Court feels that her physical presence is necessary for any particular purpose.
10. With the above directions, both the Criminal Petitions are dismissed.
11. As a sequel, miscellaneous petitions if any pending in these two criminal petitions, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:17.07.2014 mrb