Andhra Pradesh High Court - Amravati
Divakar Atluri vs The State Of Andhra Pradesh on 3 January, 2025
APHC010559292024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE THIRD DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 1277/2024
Between:
Divakar Atluri and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. D S SIVADARSHAN
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR
2. G R SUDHAKAR
The Court made the following:
2
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.1277 of 2024
ORDER:
1. Summoning order of a learned Magistrate is under challenge in this criminal revision case.
2. M/s. Andhra Pradesh State Financial Corporation (APSFC) filed a complaint under section 200 CrPC alleging offence under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (for short "the NI Act, 1881). A1 to A6 are arraigned in the complaint. On 21.06.2023, after verifying the complaint and sworn statements of the complainant, the learned Magistrate passed the following order:
"Heard, the counsel for complainant. This complaint was filed to take the cognizance of the offence punishable U/sec. 138 of N.I. Act. Sworn statement of the complainant recorded. Perused the material of the record in support of the complaint. On perusal of the documents it is found that there is prima facie material to proceed further into the case. Hence, Cognizance of the offence is taken against the accused for the offence punishable U/sec. 138 and 142 NI Act Vide CC.No.3150/2023. Issue summons to the accused on payment of process. Call On 14.09.2023"
3. Learned Magistrate registered the case as C.C.No.375 of 2023. The said case is pending before learned IV Additional Chief 3 Metropolitan Magistrate, Vijayawada. A2, A3 and A5 therein filed the present criminal revision case impugning the above referred order dated 21.06.2023.
4. Sri D.S.Siva Darshan, the learned counsel for revision petitioners and Sri G.R.Sudhakar, the learned standing counsel for respondent No.2/ Andhra Pradesh State Financial Corporation submitted arguments. Learned counsel for revision petitioner cited legal authorities.
5. M/s. Karvy Realty (India) Limited is an incorporated company. M/s. Karvy Data Management Services Limited is a part of the said group of companies. M/s. Andhra Pradesh State Financial Corporation owns a building. A part of the building was leased out to M/s. Karvy Reality (India) Limited. Over a period, the lease holder fell in arrears in paying the rents and various other charges for power and common maintenance charges etc. It is in that regard, the tenant company issued three cheques towards repayment of the overdues. On their presentation for collection, they were returned unpaid by bankers with an endorsement that "payment stopped by drawer". After serving notices on A1 to A6 and since there was no repayment of cheque 4 amounts, M/s. Andhra Pradesh Financial Corporation had filed the complaint. The learned Magistrate took cognizance of the offence and ordered summons to A1 to A6.
6. To appreciate the submissions of the learned counsels, the cause title in the said criminal case is required to be seen and the same is extracted below:
1. M/s.Karvy Data Management Services Ltd.
Rep. by its Managing Director, Registered Office: Karvy Gateway, Plot No.38 & 39, Nanakramguda, Financial District, Gachibowli, Rangareddy, Hyderabad - 500032.
2. M/s.Karvy Data Management Services Ltd, Director, Divakar Atluri, Karvy House, 46, Avenue 4, Street No.1, Banjara Hills, Hyderabad-500034.
3. M/s.Karvy Data Management Services Ltd, Director: Vijay Kumar Tarimela, Karvy House, 46, Avenue 4, Street No.1, Banjara Hills, Hyderabad-500034.
4. Sri Mahesh Vijaya Gopal, Managing Director M/s.Karvy Data Management Services Ltd, Karvy House, 46, Avenue 4, Street No.1, Banjara Hills, Hyderabad-500034.
5. M/s.Karvy Data Management Services Ltd, Director:
Comandur Parthasarathy, Karvy House, 46, Avenue 4, Street No.1. Banjara Hills, Hyderabad-500034.
6. G.Sridhar, Vice President, M/s.Karvy Data Management Services Ltd, Karvy House, 46, Avenue 4, Street No. 1. Banjara Hills, Hyderabad-500034."
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7. Dishonour of cheque for insufficiency of funds etc., is an offence under section 138 NI Act, 1881. If a person committing an offence under section 138 NI Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly as is mandated in section 141 of the NI Act, 1881.
8. A reading of the cause title printed in the above paragraphs would show that M/s.Karvy Data Management Services Limited is arraigned not once but four times. Sl.Nos.1,2,3 and 5 in the cause title is M/s. Karvy Data Management Services Limited. This certainly confounds anyone. If a company commits an offence, it can be made an accused mentioning the name once and not four times. It cannot be said that since its name is found four times, it can be convicted four times for the same offence in the same case.
9. An incorporate company may have its own Managing Director and Directors and secretary and managers and other 6 persons. A1 is shown as M/s.Karvy Data Management Services Limited. At Sl.No.1, it is shown that the said company would be represented by its Managing Director. A4 is Sri Mahesh Vijaya Gopal. He is stated to be the Managing Director of M/s.Karvy Data Management Services Limited. Thus, one would see that the company as well as the Managing Director of the company are arraigned as accused. A2, A3 and A5 are once again shown as M/s.Karvy Data Management Services Limited. For A2, Sri Divakar Atluri is shown as Director. For A3, Sri Vijay Kumar Tarimela is shown as Director and for A5, Sri Comandur Parthasarathy is shown as Director. It is these three individuals who have filed this revision.
10. Learned counsel for revision petitioners argued that the averments and allegations in the complaint do not indicate that the case is filed against them in their individual capacity and they are shown as representing the company. Since the company is already shown as represented by its Managing Director, issuing summons to these directors is an erroneous order of the court below. If the complaint is taken to have been filed against them in their individual capacity, then the complaint is required to make 7 specific allegations as to how and in what manner they are responsible for the conduct of the business of the company and the present complaint is devoid of these particulars and therefore summoning these accused is an illegal order. For the principle that unless a director's role is clearly alleged in the complaint, the complaint cannot be maintained and cited
1. Susela Padmavathy Amma V. Bharti Airtel Limited1
2. Ashok Shewakramani V. State of Andhra Pradesh2 It is argued that if the impugned order is allowed to stand it would cause undue hardship and irreparable loss to these petitioners. That summoning of an accused in a criminal case is a serious matter and the impugned order was passed in a mechanical manner and it cannot be maintained. In this regard, learned counsel for revision petitioners cited
1. Pepsi Foods Limited V. Special Judicial Magistrate3 1 2024 SCC Online SC 311 2 (2023) 8 SCC 473 3 (1998) 5 SCC 749 8
2. Aeiforia Constructions Pvt. Ltd V. Continental Carbon India Pvt.Ltd4
11. It is further argued for the revision petitioners that in terms of section 305 CrPC, it is the privilege of the company to authorize person of its choice to represent the company and cited for this purpose
1. India Brewery and Distillery (P) Ltd V. R.K.Distilleries (P) Ltd5
2. Mannam Venkata Krishna Rao V. State of AP6
12. As against that, Sri G.R.Sudharkar, the learned counsel for respondents argued that a summoning order cannot be challenged in a revision petition. It is further argued that this revision is filed belatedly. That a revision could be maintained within 90 days as per Article 131 in the schedule to the Limitation Act, 1963. It is also contended that only after the learned trial court issued warrants the present revision is filed. Finally, it was argued that the matter may be left to the trial court and the 4 Hon'ble Delhi High Court vide Crl.M.C.No.5260 of 2024 and Crl.M.A.No.20106 of 2024 and Crl.M.A.No.20108 of 2024 5 2014 SCC Online AP 1523 6 2022 SCC Online AP 3027 9 revision petitioners could seek their warrants are recalled and they may seek their discharge before the trial court. For these reasons, he prays for dismissal of the revision.
Various points fall for consideration in this revision:
13. About maintainability of the revision.
The contention raised for respondents cannot be supported. The question whether a summoning order is interlocutory or intermediatory and whether revision under section 397 CrPC or a petition under section 482 CrPC was considered by the Hon'ble Supreme Court of India in Urmila Devi V. Yudhvir Singh7. After a detailed analysis of law, their Lordships held that a summoning order is intermediatory. For the aggrieved dual remedy is available and he can maintain a revision under section 397 CrPC and in the alternative, he can also invoke the inherent jurisdiction under section 482 CrPC. Therefore, the contention raised by the learned standing counsel for respondents against the maintainability of this revision is rejected. 7 (2013) 15 SCC 624 10
14. Whether the summoning order could be questioned by the accused before the court which issued summons.
This question has arisen because of the submissions of the learned standing counsel for the respondents. This contention has no merit. In Adalat Prasad V. Rooplal Jindal8, the Hon'ble Supreme Court of India held that a learned Magistrate who issued summons as against an accused has not been empowered by the Statute to review and recall the process. For the aggrieved the only remedy is before a superior court. In that view of the law, the contention raised by the learned standing counsel for respondents is negatived and accordingly, this revision is maintainable.
15. Whether the summoning order as against these revision petitioners is in accordance with law.
The revision petitioners are Directors of M/s.Karvy Data Management Services Ltd. To make a Director of a company liable for the offences committed by the company under section 141 of the NI Act, 1881, there must be specific averments against 8 (2004) 7 SCC 338 11 the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company. Mere reproduction of the words of the section without a clear statement of fact as to how and in what manner a Director of the company was responsible for the conduct of the business of the company, would not ipso facto make the Director vicariously liable9. Merely because somebody is managing the affairs of the company, per se, he does not become in charge of the conduct of the business of the company or the person responsible to the company for the conduct of the business of the company. There can be no universal rule that a Director of a company is in charge of its everyday affairs10.
16. It is in the light of the above principles, the material on record has to be seen whether the complaint contains necessary allegations permitting the learned Magistrate to summon these revision petitioners. In paragraph No.8 of the complaint, it is stated that A4 and A6 are key managerial persons for day to day affairs of the company and issued the subject matter cheques. The present revision petitioners are A2, A3 and A5. A reading of 9 Supra 1 10 Supra 2 12 the complaint does not contain any other averments against these revision petitioners which would satisfy the principles of law referred earlier. The mere fact that the complainant issued notices to these revision petitioners do not alter the position.
17. The law is that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the material produced in support thereof and has to see whether the offence is committed by all or only some of the accused arrayed in the complaint11.
18. A perusal of the impugned order shows that that the learned Magistrate considered the material and found that it disclosed offence under section 138 NI Act. To that extent, the order does not call for interference. However, the impugned order does not reflect as to what prompted, from the facts, to summon each of the accused and more particularly these revision petitioners. Thus, that part of the order of the learned Magistrate in summoning these revision petitioners cannot be maintained. 11
Supra 3 13
19. In the result, this criminal revision case is allowed. The summoning order dated 21.06.2023 in C.C.No.375 of 2023 on the file of learned IV Additional Chief Metropolitan Magistrate, Vijayawada as against these revision petitioners/A2, A3 and A5 is set aside. The learned trial court is directed to proceed further with C.C.No.375 of 2023 in accordance with law as against the remaining accused therein.
As a sequel, miscellaneous applications, pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 03.01.2025 Dvs 14 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.1277 of 2024 Date: 03.01.2025 Dvs