Andhra HC (Pre-Telangana)
1.Sri Sanjeev Malhotra S/O Sri ... vs 1.M/S Sunshine Fruit Pulp Industries,A ... on 1 July, 2013
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No. 4443 of 2010
dated:01-07-2013
1.Sri Sanjeev Malhotra S/o Sri Sudarshan Kumar Malhotra, Managing Director,M/s
Sudarshan Overseas Limited,Admn.Shivaji Marg, New Delhi-15 and another. ...
Petitioners
1.M/s Sunshine Fruit Pulp Industries,A Regd. Partnership Firm, rep. by its
Managing Partner Sri M.Murali Reddy,Having its Regd. Office at 1-164, Main
Road,Sathupalli, Khammam District, Andhra Pradesh.... Respondents
Counsel for the Petitioners:Sri Nandigam Krishna Rao, Advocate.
Counsel for the Respondents: Public Prosecutor
<Gist:
>Head Note:
?Cases referred:
1. (2012) 1 SCC 520
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No. 4443 of 2010
ORDER:
1. This Criminal Petition is filed by the petitioners, who are accused Nos.2 and 4, under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking quashing of the proceedings in C.C.No.198 of 2009 on the file of Judicial First Class Magistrate, Sathupalli, Khammam District.
2. The allegations in the private complaint are as under:
The respondent No.1 herein is a fruit pulp manufacturing unit situated at Khammam whereas the 1st accused is a corporate body involved in exporting of various items including fruit pulp by purchasing the same from the complainant. On 09.04.2009, the respondent is alleged to have delivered material to A1 under two invoices dt.18.04.2009 for Rs.10,29,060/- and Rs.6,86,040/- respectively. As against which, A1 is alleged to have issued two cheques dt.29.06.2009 signed by A3 with a covering letter dt.15.04.2009 issued by A4 on behalf of A1 company to the complainant. The said cheques were presented on 07.07.2009 at State Bank of Hyderabad, Sathupalli Branch, Khammam District for collection but the said cheques were dishonoured on 14.07.2009 with an endorsement 'stop payment' vide memo dt.14.07.2009. Then the complainant got issued a legal notice dt.12.08.2009 to all the accused. The notices sent to A1 to A3 were returned with an endorsement left without address and the notice sent to A4 was received on 17.08.2009. Basing on the said allegations, the present complaint came to be filed for offences punishable under Section 138 read with 142 of the Negotiable Instruments Act.
3. Heard Sri Nandigam Krishna Rao, the learned counsel for the petitioners and the Additional Public Prosecutor for the 2nd respondent.
4. On 04.06.2013 when the matter came up for hearing, Sri Badana Bhaskara Rao, the learned counsel representing the respondent No.1 submitted that he is withdrawing the vakalat and seeks a week's time to inform the same to the party. On 17.06.2013 he informed the Court that he addressed a letter to his client expressing his intention, pursuant to which he received a reply intimating that suitable steps would be taken soon. From the above it is clear that the respondent No.1 is aware about Sri Badana Bhaskara Rao withdrawing his vakalat and also the fact that the matter is listed for hearing. Since that day, the matter underwent number of adjournments but no effort is made by the respondent to engage any counsel. In that view of the matter, this Court is of the opinion that no further notice is required to be given to respondent No.1.
5. The learned counsel for the petitioners mainly submits that even accepting the allegations in the complaint to be true, no offence is made out against the petitioners. According to him, the 1st petitioner was made as an accused by portraying him as Managing Director of the said company, which according to him, is incorrect. In so far as the 2nd petitioner is concerned, he submits that there are absolutely no allegations against him in the entire complaint as he is neither the person, who issued the cheques nor is he responsible for the day to day affairs of the said company. Except describing him as an authorized signatory, no role is attributed to the petitioner either with regard to issuing of the cheques or with regard to the day to day affairs of the company. He, thus, submits that continuation of proceedings against the petitioners would be an abuse of process of law.
6. On the other hand, the learned Public Prosecutor submits that the fact as to whether the 1st petitioner has resigned from the company much prior to the issuance of the cheques, is a matter to be decided by the Court during the course of trial and this Court cannot interdict the proceedings by invoking its inherent jurisdiction under Section 482 of Cr.P.C. He also submits that the 1st petitioner being the Managing Director and the 2nd petitioner being authorized signatory of the company, cannot escape themselves from the liability as specific allegations are alleged against them. He, thus, pleads dismissal of the Criminal Petition.
7. A perusal of the material available on record would disclose that the 1st petitioner resigned as a Director of the company on 01.04.2008. The said fact is borne out from the certified copy of the Form-32 filed along with the petition. The question would be as to whether Form-32 can be looked into at this stage. In Anita Malhotra v. Apparel Export Promotion Council and another1, the Apex Court observed that "the High Court while exercising its jurisdiction under Section 482 of Cr.P.C. ought to have looked into the annual return dt.30.09.2009 and Form-32 to find out as to whether the appellant therein has resigned from the company as a Director. By taking into consideration the two documents referred to above, the Apex Court quashed the proceedings. The Court held that though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed on record by the accused and if it is considered that the accusation against the accused cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those documents, which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of Cr.P.C."
8. Keeping in view of the law laid down by the Apex Court, I proceed to deal with the matter on hand.
9. As stated earlier, the cheques dt.29.06.2009 signed by A3 along with a covering letter dt.15.04.2009 issued by A4 on behalf of the firm were issued to the complainant. When the said cheques were presented on 07.07.2009 with its banker i.e. State Bank of Hyderabad, Sathupalli Branch, Khammam District , they were returned vide memo dt.14.07.2009. Thereafter, a legal notice through e- mail was issued on 16.07.2009 and thereafter through counsel on 12.08.2009. The certified copy of Form-32, which has been placed on record, would disclose that the 1st petitioner by name Sanjeev Malhotra resigned from the complaint on 01.04.2008 i.e. nearly a year prior to the issuance of cheques. That being the position and in view of the judgment of the Apex Court referred to above, it cannot be said that the 1st petitioner was responsible for issuance of cheques or that he was incharge and responsible for the day to day affairs of the company, though he was described as Managing Director in the complaint. Apart from that the cheques were not signed by the 1st petitioner but were signed by A3.
10. The 2nd petitioner was described as an authorized signatory of the company. Except issuance of covering letter dt.15.04.2009 on behalf of the company, there is no allegation of either issuance of cheques or being incharge of day to day affairs of the company. Even to prosecute a Director, Manager, Secretary or other officer of the company, the complainant has to prima facie establish that the said offence was committed with the consent or connivance or is attributable to any neglect on the part of any of the officers mentioned above. As observed earlier, the complaint is silent as to the role of the 2nd petitioner and also with regard to his consent or connivance not only with regard to day to day affairs of the company but also with regard to issuance of cheques as the covering note alleged to have issued was dated 15.04.2009, which is much prior to the issuance of the cheques. That being the position, this Court is of opinion that continuation of proceedings against the petitioners would be an abuse of process of law.
11. Accordingly, the Criminal Petition is allowed. The proceedings in C.C.No.198 of 2009 on the file of Judicial First Class Magistrate, Sathupalli, Khammam District against the petitioners, are hereby quashed. The miscellaneous petitions, if any pending shall stand closed.
____________________ C. PRAVEEN KUMAR, J Date: 01-07-2013