IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1486/2016 BETWEEN:
Surendra Ananda Poojari, S/o. Ananda Poojari, Aged about 52 years, No.501, Solitary Wadha, Hiranandani, Powai Opp: Powai Lake, Mumbai – 400 076. …Petitioner (By Sri. Rajesh Rai, Advocate) AND:
Bajaj Finance Ltd., 8th Floor, Prestige Tower, Residency Road, Bengaluru – 560 025 Rep. by its Assistant Manager, Mrs. Priyanka Khare, … Respondent (By Sri. Rajkumar R. Naik, Advocate – Absent ) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings in C.C.No.1955/2015 (P.C.R.No.20175/2014) on the file of XXV Addl. C.M.M. at Bengaluru against the petitioner for the offence punishable under Section 25 of Payment and Settlement Systems Act.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner. Counsel for respondent is absent. Perused the records.
2. Petitioner has sought to quash the proceedings in C.C.No.1955/2015 (PCR No.20175/2014) on the file of XXV Addl. Chief Metropolitan Magistrate, Bengaluru, on the ground that the complaint was filed by the respondent under Section 25 of the Payment and Settlement Systems Act, 2007 (hereinafter referred to as the ‘Act’, for short). Sworn statement was given by the complainant- Company to the effect that the petitioner committed alleged offence punishable under Section 25 of the Act. But, the learned Magistrate has taken cognizance of the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’, for short) and has issued summons to the petitioner to face trial for the said offence, which is patently illegal and bad in law. Secondly, he contended that as on the date of the alleged commission of the offence, petitioner ceased to be the Director of accused No.1/company. The resignation tendered by the petitioner was accepted vide Annexure – E. As such, prosecution of the petitioner for the alleged offence committed by the company is wholly illegal and an abuse of process of Court.
3. The first contention urged by the learned counsel for the petitioner deserves acceptance. A perusal of the complaint and the sworn statement given by the complainant/respondent indicate that the respondent sought to prosecute the petitioner for the alleged offence punishable under Section 25 (1) of the Act. According to the complainant, cheque funds transfer initiated by the accused in respect of the equated monthly installment dated 06.11.2014 amounting to Rs.94,443/- could not be honored/executed on account of insufficient funds on 10.11.2014. Dishonor of Electronic funds transfer for insufficiency of the funds in the account is made an offence under Section 25 of the Act. But, the learned Magistrate has taken cognizance of the offence punishable under Section 138 of NI Act and has issued summons to the petitioner. The same being contrary to the averments made in the complaint, cannot be sustained.
4. Insofar as second contention urged by the learned counsel for the petitioner is concerned, the document relied on by the petitioner discloses that the resignation tendered by the petitioner was accepted by Saicare Skywings Logistic Pvt. Ltd., Bengaluru. But, at this juncture, the said document, cannot be taken as the basis to hold that petitioner ceased to be the Director of the said company as on the date of the commission of the alleged offence. Nevertheless, the learned Magistrate having failed to take cognizance of the offence under Section 25 of the Act and in the absence of any material to show the ingredients of the offence under Section 138 of NI Act, the impugned order dated 20.01.2015 taking cognizance and issuance of summons to the petitioner cannot be sustained.
Consequently, petition is allowed. Proceedings in C.C.No.1955/2015 (PCR No.20175/2014) pending on the file of XXV Addl. Chief Metropolitan Magistrate, Bengaluru, insofar as the petitioner is concerned, are quashed.
Sd/- JUDGE SV