Karnataka High Court
Refex Energy Ltd vs Mrs R Ashashri on 13 August, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8548 OF 2017
BETWEEN:
1. Refex Energy Ltd.,
Solar EPC Company
Registered office situated at
No.67, Bazulla Road
T.Nagar
Chennai-600 017
Represented by its Managing Director:
Anil Jain
Aged 41 years
Son of Tarachand Jain
2. Arunsumer Mehtha
Aged 33 years
Son of Sumer Mehta
Director: Refex Energy Ltd., Solar EPE Company
No.67, Bazulla Road
T.Nagar
Chennai-600 017
3. Mahesh Kumar Sharda
Aged 60 years
Son of Visham Bhar Lal Sharda
Director: Refex Energy Ltd., Solar EPC Company
No.67, Bazulla Road
T.Nagar
Chennai-600 017
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4. M.Senthil Raju
Aged 30 years
Son of Devaraj
Director: Refex Energy Ltd., Solar EPC Company
No.67, Bazulla Road
T.Nagar
Chennai-600 017
5. Maheshwari Ramamurthy
Aged 54 years
Wife of Selvaraj Tirumurthy
Director: Refex Energy Ltd., Solar EPC Company
No.67, Bazulla Road
T.Nagar
Chennai-600 017
...Petitioners
(By Sri.M.K.Venkatramana, Advocate)
AND:
Mrs.R.Ashashri
Aged 25 years
Daughter of D.D.Raju
Wife of K.Durugesh
Agriculturist
Residing at Dyavarlahalli Village
Challakere Taluk-577 522
Chitradurga District
... Respondent
(By Sri.Gopalakrishna Murthy C, Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the proceedings in
C.C.No.531/2017 on the file of the Principal Civil Judge
and J.M.F.C, Challakere, for the alleged offence P/U/S
138 of the Negotiable Instruments Act.
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This Criminal Petition coming on for Admission
this day, the Court made the following:
ORDER
The petitioners have called in question the action initiated against them under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard learned counsel for the petitioners and the learned counsel for the respondent.
3. The respondent initiated action against the petitioners and accused No.6 on the ground that the cheque issued by petitioner No.1 - Company for Rs.4,50,000/-, bearing No.004478, dated 09.02.2017 drawn on Union Bank, Bekaner Branch, came to be dishonoured for "insufficient funds."
4. Learned counsel for the petitioners submits that as per the petition averments, cheque in question was issued by accused No.6 - Sri.Devendra Pratap Singh. There are no averments whatsoever in the -4- complaint that the cheque in question was issued for and on behalf of the company. There are also no allegations that petitioner Nos.2 to 5 were either the Directors or were incharge of the affairs of petitioner No.1 - Company at the relevant date. The very tenor of the document relied by the respondent manifests that the said cheque was drawn by accused No.6 on the account maintained by him. Therefore, action initiated against petitioner No.1 - Company as well as petitioner Nos.2 to 5 is untenable in law and an abuse of the process of Court and therefore, liable to be quashed.
5. Refuting the contention, learned counsel for the respondent submits that prior to the registration of the complaint, legal notice was issued to the company clearly intimating that towards the compensation for the acquisition of the lease hold land, the petitioner - No.1 company and its Directors had issued the cheque in question as part payment, which has been dishonoured -5- with an endorsement "insufficient funds" and therefore, necessary averments were made in the legal notice. The petitioners received the said notice without demur. The petitioners have not disputed the fact that accused No.6 was one of their employer and therefore, there is prima facie material to proceed against the petitioners as well as accused No.6.
6. On careful consideration of the averments made in the private complaint, as well as, the documents produced along with objection statement filed by the learned counsel for the respondent, I am of the view that the action initiated against the present petitioners is not sustainable both under law and on the facts of this case.
7. Undeniably, the cheque in question was drawn by accused No.6 Sri.Devendra Pratap Singh, son of Sri.Ramashrya Singh. There is nothing in the said cheque to indicate that it was drawn by accused No.6, -6- as authorized signatory of the Company. Respondent has not produced any material to show that Account No.309902010108208, in respect of which the said cheque was drawn, was standing in the name of the company. In other words, the company was not the holder of the said account No.309902010108208 and the cheque was not drawn on the account maintained by the Company. As a result, the essential ingredient of Section 138 of Negotiable Instrument Act is not made out. There is also nothing on record to show that the respondent had the alleged transaction with petitioner No.1 - Company. There is no material whatsoever to support the allegations made by the respondent that she had any transaction with the Company.
8. Under the said circumstances, merely because the cheque issued by accused No.6 has been dishonoured, the respondent cannot seek to proceed against the company or any of its Directors. Therefore, -7- I am of the view that the action initiated against the present petitioners is illegal, unsustainable and liable to be quashed.
9. It is submitted that the respondent has initiated action against the company and all the petitioners as well as accused No.6 for dismantling the tower erected in their premises. It is made clear that any observation made in this order shall not affect the contentions urged by the parties in any other proceedings.
Accordingly, the petition is allowed. Proceedings initiated against the petitioners namely accused Nos.1 to 5 are quashed. It is made clear that this order shall not come in the way of the respondent proceedings against accused No.6 in accordance with law for alleged dishonour of cheque.
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In view of disposal of the petition, I.A.No.1/2018 filed for vacating the stay does not survive for consideration. Accordingly, the same is dismissed.
Sd/-
JUDGE GH