IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.588 OF 2013 BETWEEN:
1. SRI. B. NAGARAJA SHETTY S/O LATE K. SANJEEVA SHETTY AGED 55 YEARS 2. SMT. SADHANA N. SHETTY W/O SRI. B. NAGARAJA SHETTY AGED 50 YEARS PETITIONERS NO.1 AND 2 ARE RESIDING AT SRI RAM BIJAI CHURCH ROAD MANGALORE:574 004 3. SRI. B. NITHYANANDA SHETTY S/O LATE K. SANJEEVA SHETTY AGED 52 YEARS R/AT NO 804, CASTEL OPPOSITE: CANARA CLUB KADRI, MANGALORE-575 002 … PETITIONERS (BY SHRI. M. ARUNA SHYAM, ADVOCATE) AND:
1. THE STATE OF KARNATAKA THROUGH SUB-INSPECTOR OF POLICE BANGALORE SOUTH POLICE STATION MANGALORE, D.K REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560 001 2. SRI VALERIAN RODRIGUES S/O LATE LAZARUS RODRIGUES AGED 53 YEARS R/AT ‘KINGS CORNER’ APTS BENDOOR MANGALORE-575 002 ... RESPONDENTS (BY SMT. NAMITHA MAHESH B.G., HCGP FOR R.1; SHRI S.G. BHAGAVAN, ADVOCATE FOR R.2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.01.2012 IN PCR NO. 149/2012 AND THE PROCEEDINGS IN C.C.NO.864/2012 ON THE FILE OF THE J.M.F.C.- V COURT, MANGALORE, FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT.
THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri M. Aruna Shyam, learned advocate for the petitioners, Smt. B.G. Namitha Mahesh, learned HCGP for the State and Shri S.G.Bhagavan, learned advocate for respondent No.2.
2. Respondent No.2 initiated proceedings under Section 138 of Negotiable Instruments Act, 1881, by filing a private complaint in PCR No.149/2012 before JMFC (Court - V), Mangalore. After cognizance was taken, the criminal case was registered as C.C.No.864/2012. Petitioners are accused Nos.2, 3 and 4 before the learned Magistrate.
3. Learned advocate for the petitioners submits that accused No.1 is a Partnership Firm and cheques have been issued by accused No.5, one of the partners. It is submitted that the said Partnership Firm has been reconstituted on 12.11.2002, with effect from 31.03.2000.
4. Adverting to Reconstituted Deed, Shri Aruna Shyam submits that petitioners herein are deemed to have been retired with effect from 31.03.2000, as per clause 8 of the Deed of Reconstitution.
5. Learned advocate for respondent No.2 submits that the petitioners, being partners of the firm, are equally liable.
6. Admittedly, cheques in question bearing Nos.764143, 594403, 372949 and 372947 for Rs.1,50,000/-, 2,00,000/-, 50,000/- and 1,00,000/-
respectively, have been issued by accused No.5. It is stated in Para 6 of the complaint that accused No.5 has issued the cheques with the consent of other partners on behalf of the Firm and that all accused were present at the time of issuance of cheques by accused No.5. The said cheques have been dishonoured. It is not forthcoming from the records as to what is the part played by accused No.2, 3 and 4.
7. It is not in dispute that the cheques have been issued by accused No.5 in the year 2011. Deed of Reconstitution of Partneship prima facie shows that petitioners have retired as early as in the year 2000. It also shows that accused No.5 and 6 are the continuing partners. In the circumstances, the criminal proceedings against the petitioners are unsustainable in law.
8. Accordingly, this petition is allowed. Order dated 19.01.2012 in PCR.No.149/2012 and further proceedings in C.C.No.864/2012 pending on the file of JMFC (Court - V), Mangalore, are quashed so far as petitioners are concerned.
No costs.
Sd/- JUDGE AV