IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr.JUSTICE P.S.DINESH KUMAR CRIMINAL PETITION NO.7674 OF 2018 BETWEEN:
MR KIRAN VITTAL POOJARY, S/O MR. VITTAL C. POOJARY, AGED ABOUT 38 YEARS, RESIDING AT: C/207, DHUP CHAON, OFF FOUR BUNGLOWS ROAD, NAV-KIRAN MARG, ANDHERI (W), MUMBAI – 400 053.
MAHARASHTRA.
ALSO AT:
ANDHRA PRADESH INDUSTRIAL INFRASTRUCTURE CORPORATION, INDUSTRIAL AREA LOCALITY, PLOT NO. B2-3, TIRUPATI CUDDAPAH, TELENGANA – 517 520.
AND REGIONAL OFFICE AT NO.19/3, 7TH MILE, SRINIVASA INDUSTRIAL ESTATE, KANAKLAPURU MAIN ROAD, KONANAKUNTE (POST) BENGALURU-560062. … PETITIONER (BY SRI. C K NANDAKUMAR, ADV.) AND:
HICOTRONICS DEVICES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT NO.39/1, 1ST MAIN ROAD, NEW TIMBER YARD LAYOUT, MYSORE ROAD CROSS, BENGALURU – 560 026.
REPRESENTED BY ITS MARKETING MANAGER, SRI. S. JAGANNATH RAO. … RESPONDENT (RESPONDENT - SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE COMPLAINT AND ENTIRE PROCEEDINGS IN C.C.NO.24567/2016 ON THE XXV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner is accused No.3 in the proceedings initiated under Section 138 of Negotiable Instruments Act by the complainant – respondent in respect of dishonour of a cheque issued by the first accused namely M/s. Avni Energy Solutions Private Limited.
2. The said company had issued another cheque to the complainant which is subject matter of Crl.P No.4509/2018 decided by order dated 06.06.2019 in Crl.P No.5404/2017 and connected matters.
3. Shri C.K.Nanda Kumar, learned advocate for the petitioner submits that this Court having considered the fact that the petitioner was a nominee Director has quashed the proceedings against him.
4. Though served, none appears for the respondent.
5. In order dated 06.06.2019 in Crl.P.No.5404/2017 and connected cases, this Court has recorded as follows:
“7. Thus, it is evident that no specific role has been attributed to the petitioner and there has been a reproduction of the language of the provision used in Section 141 of the Act. Admittedly, the petitioner was a nominee Director who had resigned on 09.09.2016. Section 2(60) of the Companies Act, 2013 defines the expression ‘officers who is in default’ to mean the officers of a company mentioned therein viz., whole time director, key managerial personnel, where there is no key managerial personnel such director or directors as specified by the board in this behalf, any person who under the immediate authority of the board or any key managerial person is charged with any responsibility as well as any person in accordance with whose advise directions or instructions the board of directors of the company is accustomed to act. In the instant case, from the averments made in the complaint, the petitioner also does not fall within the meaning of the expression ‘officers who is in default’. Thus, even if the averments made in the complaint are taken to be correct in its entirety, then also no offence is made out against the petitioner. So far as decision of the Supreme Court relied upon by learned counsel for the respondent in case of ‘GUNMALA SALES PRIVATE LIMITED VS. ANU MEHTA AND OTHERS’, (2015) 1 SCC 103 is concerned, the same is not of any assistance to the petitioner as it is an authority for the proposition that if a Director was in charge and responsible for conduct of the business at the relevant time, the Magistrate can issue summons to him. The continuance of the proceedings against the petitioner in the fact situation of the case amounts to abuse of process of law. In view of preceding analysis, the entire proceedings in C.C.No.7122/2017 pending before XLII Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed.”
6. The facts in the above case and this case are identical. Hence, following the decision rendered by this Court in the aforesaid petition, this petition is also allowed. All proceedings in C.C.No.24567/2016 pending on the file of XXV Additional Chief Metropolitan Magistrate, Bengaluru are quashed.
No costs.
Sd/-
JUDGE GH