IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7890/2015 BETWEEN:
Smt. Sujatha Anil Nair, W/o. Anil Shivashankar Nair, D/o. Champoli Manjeri, Vijayaraman Kutty Menon, Aged about 42 years, No.7/91, Sashi Prabha, Garodia Nagar, Ghatkopar (E), Mumbai, Maharashtra, India – 400 077. …Petitioner (By Sri. S.P. Kulkarni, Advocate) AND:
1. Smt. Nirmala Virupaksha, W/o. Angadi Virupaksha, Aged about 42 years, R/at: No.5021, Shobha Daffodils Apts., 27th Main, 2nd Sector, HSR Layout, Bengaluru – 560 102.
2. M/s. Aztech Capital Pvt. Ltd., No.30, 2nd Floor, Pragathi Mansion, Dr.D.V.G. Road, Basavanagudi, Bengaluru – 560 004.
3. Sri. Swamy D. Gangadhar, CEO & Port Folio Manager, M/s. Aztech Capital Pvt. Ltd., R/at No.555, Mangala Nilaya, 1st Main, 15th Cross, Annapurneshwarinagar, Nagarabhavi 2nd Stage, Bengaluru – 560 072.
4. Smt. Geetha R. Ashtakar, D/o. Ramachandra Rao, Managing Director, M/s. Aztech Capital Pvt. Ltd., R/o. No.412/413, C/o. Venkateshwara Textiles, Avenue Road, Bengaluru – 560 002. … Respondents (By Sri. Pradeep C.S., Advocate for R1-Absent; R2 served and unrepresented;
Sri. R.S. Pattanashetty, Advocate for R3 and R4 – Absent) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.8329/2015 (P.C.R.No.15832/2012) on the file of XX Addl. C.M.M. at Bengaluru for the offence under Section 138 of N.I. Act being arbitrary, erroneous, false, unnecessary and being abuse of process of court insofar as the petitioner is concerned.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner. Counsels for respondent Nos.1, 3 and 4 are absent. Respondent No.2 is served and unrepresented.
2. The main contention urged by the learned counsel for petitioner is that the petitioner herein ceased to be the Managing Director of Aztech Capital Pvt. Ltd., Bengaluru, one year prior to the issuance of the alleged cheque transaction. The cheque in question was neither signed nor drawn by the petitioner. There are no specific averments constituting the offence under Section 138 of Negotiable Instruments Act insofar as petitioner/accused No.4 is concerned. Hence, the impugned proceedings initiated against the petitioner are liable to be quashed.
3. The case of the complainant/respondent No.1 is that she had invested Rs.7,50,000/- in equity market and in respect of the said transaction, accused issued two cheques bearing No.089470 dated 10.04.2012 for a sum of Rs.55,000/- and another cheque bearing No.093060 dated 10.04.2012 for a sum of Rs.3,19,896/-. The said cheques when presented for encashment were dishonoured for insufficient funds.
4. Certified copy of Form No.32 produced by the learned counsel for petitioner indicates that petitioner/accused No.4 ceased to be the Managing Director of Aztech Capital Pvt. Ltd., Bengaluru, with effect from 16.02.2011. There is nothing on record to show that subsequent to the said resignation petitioner herein continued to be the Director of the Aztech Capital Pvt. Ltd., Bengaluru. The cheque in question is seen to have been signed by accused Nos.2 and 3. As such, the essential ingredients of the offence under Section 138 of NI Act having not been satisfied, prosecution of the petitioner for the alleged dishonour of the cheque cannot be sustained.
Consequently, petition is allowed. Proceedings initiated against the petitioners in C.C.No.8329/2015 (P.C.R.No.15832/2012) on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru, are quashed only insofar as the petitioner/accused No.4 is concerned.
Sd/- JUDGE SV