IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.6086/2017 BETWEEN:
SMT. SULTANA ABDUL WAJID W/O LATE ABDUL WAJID AGED ABOUT 67 YEARS NO.2931/1, VIDYANAGAR EAST DAVANAGERE – 577 005 ... PETITIONER (BY SRI. SACHIDANANDA K, ADV.) AND:
1. M/S. GEETA MONITORS PVT. LTD NO.38/1, N.S.IYENGAR STREET SHESHADRIPURAM BENGALURU – 560 020 REPRESENTED BY ITS DIRECTOR SRI.ASHOK A CHHABRIA 2. MICROLINE ELECTRONICS PVT. LTD NO.3, RATNA VILAS ROAD BASAVANAGUDI BENGALURU – 560 004 REPRESENTED BY ITS DIRECTOR 3. MR.IQBAL MOHIUDDIN MAHABOOB S/O LATE SHAIK MAHABOOB MICROLINE ELECTRONICS PVT. LTD NO.201/202, II FLOOR SAPTAGIRI GARDENS PANDURANGANAGAR BENGALURU – 560 076 4. MR. MANSOOR A.M S/O LATE SHAIK MAHABOOB DIRECTOR MICROLINE ELECTRONICS PVT. LTD NO.3, RATNA VILAS ROAD BASAVANAGUDI BENGALURU – 560 004 5. MICROLINE ELECTRONICS PVT LTD NO.2931/1, VIDYANAGAR EAST DAVANAGERE – 577 005 ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.15558/2016 IN PCR NO.4333/2016 ON THE FILE OF XLII ADDL.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.K.Sachidananda, learned counsel appearing for petitioner. Perused the records.
2. Respondent No.1 has filed a complaint under Section 200 of Cr.P.C. against the petitioner (accused No.6) and five others alleging that petitioner to discharge the debts they owed to the complainant had issued cheques and on same being presented came to be dishonoured or returned with an endorsement ‘insufficient funds’ and thereby, accused persons have committed an offence punishable under Section 138 of NI Act.
3. On summons being issued, petitioner has approached this Court for quashing of said proceedings contending inter-aila that averments made in the complaint do not satisfy the ingredients prescribed under Section 141 of the NI Act. It is also contended that petitioner had resigned from the Directorship of accused No.1-Company and she being no more a Director of accused No.1- Company, she cannot be prosecuted. She has relied upon judgment of Hon’ble Apex Court in the matter of Gunmala Sales (P) Ltd., vs. Anu Mehta reported in 2015 (1) SCC 103. Hence, petitioner seeks for quashing of proceedings initiated against her.
4. Having heard learned counsel for petitioner and on perusal of case papers, it would disclose that in the complaint filed by respondent No.1, it has been specifically contended in paragraph 4 of complaint that accused Nos.2, 3, 4 and 6 are the Directors of accused No.1-Company, who are in-charge and responsible for day to day affairs of the company; and they are responsible for running accused No.1-Company. This averment does not restrict to the same alone. It has been further quantified by the complainant in paragraph 6 to the effect that these accused persons had met the complainant on 31.12.2015 and they had acknowledged that an amount of Rs.66,08,670/- was due to the complainant and had also paid an amount of Rs.4 lakhs on 11.01.2016.
5. Thus, as to whether petitioner and other accused persons namely accused Nos.2, 3, 4 and 6 are the Directors as on the date of issuance of cheques and on the date of alleged acknowledging the debts and whether they had role in day to day affairs of accused No.1-Company, if so, what was their role are all matter of trial and at the stage of examining a plea for quashing of proceedings, by exercising power under Section 482 of Cr.P.C., this Court would not embark to conduct a roving enquiry in this regard or in other words, probable defense of the accused would not be examined.
6. However, it is suffice to state that averments made in the complaint prima-facie would suggest that petitioner was the Director at the relevant point of time and relevant extract issued by the Registrar of Companies, which has been made available by learned counsel for petitioner would clearly disclose that petitioner resigned from the post of Director with effect from 26.02.2016 i.e., subsequent to issuance of alleged cheques on 19.01.2016 and 08.02.2016. As such, contention of learned counsel that petitioner had resigned from Directorship of accused Nos.1-Company prior to issuance of cheques in question cannot be accepted. Even otherwise, as already noticed herein, averments made in the compliant would disclose that complainant has specifically contended that petitioner was not only the Director but was also in-charge of day to day affairs of accused No.1-Company and infact accused Nos.2, 3 and 4 along with accused No.6 had met the complainant on 31.12.2015 and is said to have paid a sum of Rs.4 lakhs to the complainant towards discharge of the debts.
7. In that view of the matter, this Court finds that there is no merit in the contention raised in this petition and the judgment relied upon by learned counsel for petitioner would not be attracted to facts on hand, since the Hon’ble Apex Court in the said judgment has noticed that there was no specific averment in the complaint as to the role of the accused as a Director of the Company and as such, order passed by the High Court quashing the proceedings against the accused, who was aged about 70 years came to be upheld. However, the facts on hand is entirely different as already notice herein above.
8. However, taking into consideration that petitioner-accused is aged about 67 years, it would suffice to grant liberty to the petitioner to file appropriate application before trial Court for granting permanent exemption. Hence, reserving liberty to the petitioner to file appropriate application for exemption, if so advised, this petition stands disposed of. In event of such application being filed, trial Court is directed to sympathetically consider the same after hearing the complainant/his counsel also.
In view of disposal of this petition, I.A.No.1/2017 does not survive for consideration. Hence, it is hereby rejected.
SD/- JUDGE VM