IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRIMINAL PETITION No.1011/2016 BETWEEN SRI MUDDAIAH C S/O LATE CHIKKALINGAIAH AGED ABOUT 80 YEARS, R/AT NO. 910, 1ST BLOCK, 1ST CROSS, RAMAKRISHNA NAGAR, MYSORE.
... PETITIONER (BY SRI NAIK N R, ADV.) AND 1. B R AKSHAY S/O B.R RAJANNA GOWDA, AGED ABOUT 34 YEARS, 2. B.R.ASHRITH S/O B.R.RAJANNA GOWDA AGED ABOUT 32 YEARS, 3. B.R.AVINASH S/O B.R.RAJANNA GOWDA AGED ABOUT 29 YEARS, 4. SMT. MOHAN RAJANNA S/O B.R.RAJANNA GOWDA AGED ABOUT 58 YEARS, ALL ARE MANAGING PARTNERS OF M/S NIRANJANA DEVELOPERS, NO. 219-50/3, 3RD MAIN ROAD, JAYANAGARA, 6TH BLOCK, BEHIND ABHAYA GANAPATHI TEMPLE, BANGALORE - 82.
... RESPONDENTS (BY SRI RAKSHITHA D J, ADV. FOR R1 TO R4.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER PASSED IN CRL.RP.NO.271/2014 DISMISSED ON 24.08.2015 BY THE II ADDL.S.J., MYSORE AND TO QUASH THE ORDER PASSED IN C.C.NO.2461/2012 BY THE I ADDL. I CIVIL JUDGE AND JMFC, MYSORE DATED 30.07.2013, DISMISSING THE COMPLAINT REGISTERED AGAINST THE RESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I.ACT THIS CRIMINAL PETITION COMING ON FOR ‘ADMISSION’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and learned counsel for the respondents.
2. Petitioner is the complainant in C.C.No.2461/2012 on the file of the First Additional Civil Judge & JMFC, Mysore instituted under Section 200 of Cr.P.C. by the petitioner invoking the provision of Section 138 of NI Act.
3. The facts in brief are that the accused had borrowed a sum of Rs.10 Lakhs and that on a persistent demand made by the petitioner, the deceased-accused had issued a cheque and that when he attempted to encash the cheque through his banker, cheque was dishourned and payment was stopped on the instructions issued by the deceased-accused. During the pendency of the complaint, the accused passed away and by order dated 30.07.2013, the Court of JMFC closed the proceedings as abated. The said order came to be called in question in Criminal Revision Petition before the Court of the Second Additional Sessions Judge, Mysore wherein an attempt was made to rope the children of the deceased-accused on the premise that the children are also Managing Partners of the Firm and on whose behalf the amount was received by the deceased- accused. The Revisional Court after examining the complaint concluded that there is no pleading in the complaint that the cheque was issued for discharging a legal liability incurred by the Partnership Firm and that the deceased was arrayed as a sole accused. The firm was not arrayed as a party and in that view of the matter, the Revisional Court was pleased to conclude that the order closing the proceedings as abated does not warrant any interference.
4. It is contended by the learned counsel for the petitioner that the accused has received the aforesaid sum for the business of the partnership firm and that the accused has been described as Managing Director in the cause title.
5. Per contra, learned counsel for the respondents would place reliance on the ruling of the Hon’ble Apex Court rendered in the case of Aneeta Hada vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661 and would contend that the mandatory requirement of impleading the Company has been given a goby by the petitioner and in that view of the matter, the complaint came to be instituted against the deceased-accused in his individual capacity. The complainant-petitioner cannot now turn around and seek to place reliance on the provision of Section 141 of the NI Act.
6. The Hon’ble Apex Court in paragraph No.59 of the ruling stated supra has been pleased to hold as follows:
“59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V.Parekh which is a three- Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove.”
7. In the instant case, the accused has been arrayed as accused in his individual capacity and the Partnership Firm has been not arrayed as a party to the proceedings. Hence, in the light of the law laid down by the Hon’ble Apex Court in the case stated supra, the order under challenge does not warrant interference.
Accordingly, the petition being devoid of merits stands dismissed.
Sd/- JUDGE VM CT:HR