Karnataka High Court
Sri Vineet Prabhu vs M/S B H Krishna Reddy & Co on 19 March, 2012
Author: N.Ananda
Bench: N.Ananda
OURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH €£O -
c HOT WVU UP SARMALAKATIION CUURE UF RAKNALAKA HIGH COURT OF KARNATAKA HIGH
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 197% DAY OF MARCH 2012 - BEFORE ; ; 7 - .
THE HON'BLE MR.JUSTICE. N.ANANDA - a CRIMINAL PETITION NOS. S7A7/ 2007 c/w. eal 8). 2007 a
1. SRI VINEET PRABHU .
MANAGING DIRECTOR, SU PRE ME TELECCMMUNICATION LIMITED, 303, WOOD STOCK, VERSOVA, | MUMBAI 400 O88. | .
2. SEI DINESH & PAL:
A201, SWATH, VERSOVA, MUMBAI 400 058
3. SRI RAVI S BADWAL B-401, SWATI, VERSOVA, MUMBAI 400 058:
. PETTTIONERS COMMON IN BOTH CASES By Sri i VENEATESH R BHAGAT, ADV} : AND;
M/S B H KRISHNA REDDY &CO REP. BY ITS PARTNER, _. SRIB.H.KRISHNA REDDY, _8/O LATE HENJA REDDY, oo. AGED ABOUT 42 YEARS, R/O PAVAGADA, TUMKUR DISTRICT.
.. RESPONDENT COMMON IN BOTH CASES (By Sri B C SEETHARAMA RAO, ADV,} BAL Rares "EP BRAKNALABA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH |
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THESE CRL.PS ARE FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DT. 25. 10.07 PASSED BY THE P.O, FTC-I, TUMKUR IN CRL.RP.NOS.120/07 & 119/2007 RESPECTIVELY | CONFIRMING THE ORDER OF TAKING COGNIZANCE AND ISSUING PROCESS BY THE marie TED JMFC.,. - PAVAGADA IN C.C.NOS. area ee 4185/2007 RESPECTIVELY, AT ANNEXURE-A. on ns THESE PETITIONS COMING ON: FOR. FINAL. HEARING THIS DAY, THE COURT "MADE THE FOLLOWING:
CrL.P.No.5717/ 2007 is filed by accused 1 to gin C.C.No, 183/ 2007 | pending 'trial for an offence puntiehable under 'Section 138 ef the Negotiable Instruments Ant (for short "the Act').
2. CrL.Pa. 5718/2007 § is filed by accused 1 to 3 in "C.0.Ho.185/2007 pending trial for an offence
- punishable under Section 138 of the Act.
. 31 have heard Sri Venkatesh R Bhagat, learned ; Counsel for petitioners and Sri B.C.Seetharama Rao,
- learned Counsel for respondent.
4. The learned Counsel for petitioners has made | following submissions: fo. he awae IGM CUURT OF KRARNAIAKAIIGH COUKT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO
i) That the company has not been made a party to fasten vicarious lability en 'the Directors and Managing Direstors, of the _ Company. a : 7 ii} On the date of revalidation of * cheques, petitioners (accused 2 and 3 had ceased to be the Directors of the Company.
in} The averments i iti the complaint do not bring petitioners within the purview of Section 141 of the Act, | oe Thel learned Magiatrat should have recorded _ . sworn statense:tt of complainant instead of 7 recaiving the sworn statement in the form of
5. The learned Counsel has relied on the judgment
- of tire Supreme Court reported in AIR 2005 SC 3512 (in
- ~~ the case of $.M.S.Pharmeceuticals Ltd., Ve. Neela "Bhalla and another), 2006(6) ALL MR (SC} 131 (in the case of Sabitha Ramamurthy & another Ve. R.B.S.Charnnabasavaradhya)}. fo ke nr, Tag hE aE aS | Gr KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT Or KARNATAKA HIGH COURT GF KARNATAKA HIGH COURT OF KARNATAKA HIGH | G. The cheques in dispute are alleged to. have drawn on behalf of M/e.Supreme Telecommunications Limited, of which petitioners are shown to. be the Directors. The first petitioner bus been shown as s the . Managing Director of Ms. Supreme, Telecommurications Limited and he hes not 'been prosecuted in his individual > capacity, Therefore, firat submission that the Company. hes net been arrayed as an accused falls to ground.
7. Sri ri BS os oot Rao, learned Counsel for respondent would | jus iy 4 the impugned order by making following submissions;
a i) - That, "nevessary averments are made in | 7 _consplaint to bring petitioners within the Su, purview of Section 141 of the Act.
- ii) ~ Whether petitioners had ceased to be the ; Directore of the Company ae on the date of revalidation is a disputed fact which cannot be resolved under Section 482 Cr.P.c. py bred, HGH COURE OF KARNATARKAHIGN COURT OF KARMATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO
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iit} In view of amendment to Section 143 of the Act, receipt of affidavit in the form of eworn statement is permissible in law.
8. In reply notice dated 22.5,.2006. caused. by petitioners, it is stated that petitioners 2 end 3 were not :
the Directora of Mis. Supreme "Teleco munications Limited, when respondent. had presented the cheque with its banker. Therefore, petitioners 2 and 3 are in no way responsible ior dishonour ef f cheques. a The pet: idoners have" filed a photostat copy of the form stated to have been filed by the Registrars of Company. The. "earned Counsel for respondent hae
-- dioputed the " atithenticity of this document. The Directors and were in charge of the affairs of Company oe as on. the date of issuance of cheques. Whether,
- petitioners 2 and 3 had ceased to be the Directors, as on the presentation of cheque, is a disputed question of fact which cannot be resolved in a petition filed under Section 482 Cr.P.C. N ( ) peek des ok Hat é "TOF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH
10. In view of amendment to Section 143 of the Act, receipt of affidavit in the form of sworn statement is | permissible. In fact, Section 143 of. the. Act was.
amended to dispense with recording, of preitteinary evidence/ sworn statement. Therefore, 'this submission cannot be accepted.
11. The decision reporied in in: AIR 2005 SC 3512 deals with the provisions of Sections 41 and 138 of the N.LAct and tine Suprerae Court has held that hability under Section 14% of the Act arises from being in charge of and responsible for 'conduct of business of the Company et the relevant tame when the offence was committed. Therefore, there shall be necessary a averments in the complaint.
12. In the decision reported in 20066} ALL MR 7 , (sc) 131, the same position of law has been reiterated.
13. In the case on hand, in the reply notice, respondents 2 and 3 have contended that they had ceased to be the Directors when the cheques were dur GUURT OF KARNALAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO presented for collection. It is not the case of petitioners 2 and 3 that they were not the Directors and thet they were not in charge of day to day business of the . Company on the date when the cheques + were ieoued, tn a the complaint necessary averments are made to ) Taster. vicarious liability on petitioners 2 and: 3. "The photostat | copy of declaration . stated to have been' filed by petitioners before the Registrar of - Company showing that they have resigned from. the Directorship in July, 2005 being « a sispated document cannot be taken into consideration to quash U the proceedings. 14: In view of the above discussion, I do not find any merit in the petition. Petitions are accordingly, dintsiseed. It is made clear that observations made : herein ane yeatricted for the decision of this petition and the learned trial Judge shall not be influenced by the : ~~ observations made herein during subsequent stages of 'the cage, Sd/s JUDGE