IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6865/2015 C/W CRIMINAL PETITION Nos.6862 – 6864/2015 BETWEEN:
1. SMT. ZEENA AHMED, AGED ABOUT 59 YEARS, W/O SHAMSHAD AHMED, R/AT NO.16, SUNNY BROOKS, SARJAPURA ROAD, DODDA KANNELI, BENGALURU-560 035.
(BY SRI.BALASUBRAMANYA B.N ADVOCATE FOR SRI. M.R.C. MANOHAR, ADVOCATE) AND:
ASERA SALE CORPORATION, REP. BY ITS PARTNER, SMT. RAJASHREE ASERA, NOW REP. BY HER LETTER OF AUTHORITY HOLDER SUKHRAJ BHANDARI, S/O LATE DHANRAJ BHANDARI, AGED ABOUT 59 YEARS, R/AT 298, 17TH CROSS, 2ND BLOCK, R.T.NAGAR, BANGALORE-560 032. ... RESPONDENT (COMMON) (BY SRI.M.R. SUNILKUMAR, ADVOCATE) THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.Nos.16162/2015 (P.C.R.No.8766/2015), 16159/2015 (P.C.R.No.8879/ 2015), 16160/2015 (P.C.R.No.8868/2015) & 16161/ 2015 (P.C.R.No.8767/2015) PENDING ON THE FILE OF XV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, AT BENGALURU FOR THE OFFENCE P/U/S/ 138 OF NEGOTIABLE INSTRUMENTS ACT DIRECTING THE PETITIONERS WHO ARE ACCUSED Nos.3 AND 4 TO APPEAR BEFORE THE COURT.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These four petitions are filed by accused Nos.3 and 4 against whom private complaints have been filed by the respondent under Section 138 of Negotiable Instruments Act, 1881 (‘the Act’ for short).
2. Respondent in all the above four cases instituted proceedings under Section 138 of the Act for dishonour of four different cheques issued by accused No.1 –M/s. Janus Leather Private Limited, signed by its Authorised Signatory – accused No.2. The said cheques when presented for encashment having been dishonoured, the complainant sought for prosecution of the Company (Accused No.1) and its authorized signatory (Accused No.2) as well as petitioners herein who are Directors of the accused No.1-Company.
3. Heard learned counsel for the petitioners.
Learned counsel for respondent is absent. Perused the records.
4. Learned counsel for the petitioners at the outset would submit that according to the complaint, the alleged offence has taken place subsequent to 05.05.2015. The petitioner No.1 (Accused No.3) ceased to be the Director of accused No.1-Company with effect from 04.03.2013 and petitioner No.2 (Accused No.4) ceased to be the director with effect from 04.12.2014. In support of this submission, learned counsel for the petitioners has produced Form No.32 submitted before the Registrar of Companies, which discloses that petitioner No.1 (Accused No.3) retired from the directorship of the said Company with effect from 04.03.2013 and accused No.4 ceased to be the director of the accused Company with effect from 04.12.2014.
5. In view of the above unimpeachable documents, the prosecution of the petitioners for the alleged dishonour of cheques under Section 138 of the Act cannot be sustained. Even otherwise, there are no averments whatsoever in the complaint that the petitioners herein were incharge of the affairs of the Company and were responsible for the business of the Company at the time of issuance of the said cheques. In the absence of any such averments, no prosecution can be launched against the petitioners under Section 142 of the Act. Therefore, on both these grounds, the proceedings are liable to be quashed.
Consequently, petitions are allowed. Proceedings in C.C.Nos.16162/2015 (P.C.R.No. 8766/2015), 16159/2015 (P.C.R.No.8879/2015), 16160/2015 (P.C.R.No.8868/2015) & 16161/2015 (P.C.R.No.8767/2015) pending on the file of XV Additional Chief Metropolitan Magistrate, at Bengaluru for the offence punishable under Section 138 of the Act only insofar as petitioner Nos.3 and 4 (Accused Nos.3 and 4 respectively) are concerned, are quashed.
PYR SD/-
JUDGE