IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4303 OF 2014 BETWEEN:
1. SRI SRIHARI S/O SHANMUGAVELU, AGED ABOUT 38 YEARS, WORKING AS BRANCH MANAGER, CCS INFOTECH PRIVATE LIMITED, NO.5, 2ND FLOOR, 12TH CROSS, JAYAMAHAL EXTENSION, BANGALORE-560 046.
2. SRI HARINDRANATH RATHNAKUMAR, S/O C.HARINDRANATH, AGED ABOUT 45 YEARS, EXECUTIVE DIRECTOR, CCS INFOTECH PRIVATE LIMITED, FLAT NO.6, NO.14, PERIYAR ROAD, T.NAGAR, CHENNAI-600 017.
3. SRI HASAN ABDUL KHADAR M.A. S/O ABUBACKAR, AGED ABOUT 45 YEARS, CHAIRMAN CUM MANAGING DIRECTOR, CCS INFOTECH PRIVATE LIMITED, RESIDING AT CCS TOWER, NO.14, PERIYAR ROAD, T.NAGAR, CHENNAI-600 017.
(BY SRI: H.N.VENKATESH, ADVOCATE) ... PETITIONERS AND 1. STATE OF KARNATAKA BY BYATARAYANAPURA POLICE STATION THROUGH ITS CIRCLE INSPECTOR, MYSORE ROAD, BANGALORE-560039 (DELETED AS PER ORDERS OF THE THIS COURT DATED 23.7.2014) 2. M/S. ECS INFOTECH PRIVATE LIMITED BRANCH OFFICE AT NO.20/1-5, MYSORE ROAD, NAYANDANAHALLI, BANGALORE-560 039 REPRESENTED BY ITS DIRECTOR SRI.YATEESH NALIYAMANDA.
... RESPONDENTS (BY SRI: SUNEEL S NARAYAN, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.17407/2013 ON THE FILE OF III A.C.M.M., BANGALORE CITY BY SETTING ASIDE THE COGNIZANCE TAKEN AND PROCESS ISSUED AGAINST THE PETRS. AS ABUSE OF PROCESS OF LAW.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners have sought to quash the proceedings initiated against them by the respondent in C.C.No.17407/2013 on the file of III Addl. CMM, Bengaluru.
Heard learned counsel for the petitioners and learned counsel for the respondent.
2. The respondent filed a private complaint under Section 200 Cr.P.C. for the offence punishable under section 420 r/w 34 Indian Penal Code. The material allegations levelled against the petitioners are that in respect of the liabilities due by the M/s CCS Infotech Private Limited, petitioner Nos.2 and 3 being its Branch Manager and Executive Director issued a cheque for Rs.31,75,000/-. The said cheque when presented for encashment was ‘dishonoured’. Hence, the complainant sought prosecution of the petitioners for the offence punishable under section 420 r/w 34 Indian Penal Code. Learned Magistrate recorded sworn statement of the complainant and took cognizance of the above offence and issued summons to the petitioners and at this stage, the petitioners have approached this Court seeking quashment of the said proceedings.
3. Learned counsel for the petitioners’ submits that in respect of very same cheque, respondent had initiated a proceedings under section 138 of N.I.Act in C.C.No.8564/2011 on the file of Chief Judicial Magistrate Court at Mirzapur, Ahmedabad (Rural) and after trial, the petitioners were acquitted of the said offence by order dated 07.12.2016 and hence, there is no cause of action for the respondent/complainant to lodge the second complaint on the same cause of action. Further, he submits that the averments made in the complaint, even if taken on their face value do not constitute the offence under section 420 Indian Penal Code and hence, on this score, the impugned proceedings are liable to be quashed.
4. Defending the impugned action, learned counsel appearing for the respondent submits that as against the order of acquittal passed by the CJM, Mirzapur Court, an appeal is pending in the District Court. Therefore, the acquittal of the petitioners has not attained finality. Further, he submits that necessary averments are made in the complaint attracting the offence under section 420 Indian Penal Code and therefore, the prosecution of the petitioners is unsustainable under law.
5. Having heard the learned counsel for the parties and on going through the records, it is not in dispute that in respect of dishonour of cheque issued by petitioner Nos.1 and 2, respondent has already resorted to criminal action by filing a complaint under section 138 of N.I Act and the said proceedings have ended in acquittal of the accused. Though the appeal is said to have been pending against the said order, yet the fact remains that the petitioners have been acquitted of the charges levelled against them for the alleged dishonour of cheque. Insofar as the offence under section 420 Indian Penal Code is concerned, accusations are also based on dishonour of the very same cheque. In para 9 of the complaint, respondent has narrated the circumstance leading to dishonour of the cheque. Para 10 of the said complaint deals with the averment pertaining the offence under Section 420 IPC. It reads :-
“The complainant Company further submits that the accused have issued the above said cheque in discharge of the outstanding liability to the complainant Company and as such with above said grounds for dishonoured in the accused bank account, has committed an offence punishable under section 420 r/w 34 of Indian Penal Code. The accused has deliberately with an intention of ulterior motive of cheating the complainant has got the above said cheque dishonoured.”
In the absence of specific averments that fraudulent and dishonest intention of cheating was present at the beginning of the transaction i.e. at the time when the offence is said to have been committed, prosecution of the petitioners is wholly illegal and cannot be sustained.
As a result, petition is allowed. The impugned proceedings against the petitioners in C.C.17407/2013 pending on the file of III Addl. CMM, Bengaluru are quashed.
Sd/- JUDGE *mn/-