Karnataka High Court
Pebble Bay Developers Pvt Ltd vs H V Gowthama on 20 April, 2010
Equivalent citations: 2010 CRI. L. J. 3978, 2011 ACD 728 (KAR), 2010 (3) AIR KANT HCR 792, (2011) 1 ALLCRILR 770, (2011) 4 CRIMES 139, (2011) 3 BANKCAS 152, (2011) 2 ICC 14, (2011) 4 CURCC 43, (2011) 1 CIVILCOURTC 621, (2011) 1 RECCIVR 535, (2011) 1 KANT LJ 105, (2010) 4 RECCRIR 697, (2011) 100 CORLA 16.2 SN, 2011 (1) NIJ 573 SN
Cr1.P.No.889~
IN THE HIGH COURT or KARNATAKA AT "~ 3
Dated this the 2033 day of April V an 'A
BEFORE:
THE HONBLE MR.JLTSTICi?} D' "
Criminal Petitiofi.N'o,889 o=£_2o.1c_;;
Criminal Petition Nos...890./2010:, 891 /201o',"e9'2/20104
893/2010, 894/2010 _;I.;.;-;;;E$:@;2oio, 896/20104
897 / 20-10 and :89_8£2;0~10'
10
Between
1 Pebbl_eif,Bay' f:5E3eve1o'pers Ltd
Ha'»*ing"t11eir'VBranCh Office at
"OnXyVCent..re., ¢1t.'n"floor, # 5,
1\/iuseturn"RoatCi, 'B'an' "aiore --56000 1 .
and. aiso at Re1he}a"§hambers
' ~ _LiI'1ki1}-g Road and Main Avenue
Santacruz West, Mumbai ~» 400 054
' 5.-,"'R%/byrits Director, Aditya Raheja
' .,.:fd_{r"A:1ity»a Raheja, Director
P-e.'b-ble Bay Developers Pvt Ltd
_.~Brat:1eh Office at Onxy Centre,
a {Lth Floor, # 5, Museum Road,
Bangalore -« 560 0O1and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -« 400 054. Petitioners
[By Sri Balaji Srinivasan, Adv. for AKS Law Associates}
1 H V Gowthama
Chartered Accountant V
M / s Gowthama and Company p_
at 23/57, 415i Cross, East .,
C Main Road, 9th Block, J ayanagar, ~ , ,
Banga1ore»560069. " ...,,»'R:spondenti
(By Sri Ravi B Naik, Sr. Adv. for-s'ri H M S1'-d_dh'arth,, Adv]
This Cr1.P is filed /S7_48,?_. C:r.,_P..,VC'~praying to quash the
proceedings initiated aga_ins't..,th,e petifioners under Sec.138
of N.I.Act, pursuant the ._ order~vVd'ate.d;24.12.09 taking
cognizance in.C;--C.No.3209Jr"/¢2009 pending before the XVI
Add1.CMM,3_Banga1ore, 4' ,
cr1.P.No.s9£L7f2/Q16" ' ''
Between -- V
1 Pebbiie Bay"DV'eve3opers Pvt Ltd
_ Having tjheir i3ranch Office at
'' ,Om<y''Centre, 4th floor, # 5,
V E Vlviuseuni' Road, Banga}.ore--560001,
jandaiso at Raheja Chambers
Linking Road and Main Avenue
Santracruz West, Mumbai -- 400 054
R--,7[b_V5'Its Director, Aditya Raheja.
U.Mr Aditya Raheja, Director
'Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangaiore -- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -- 400 054. Petitioners
(By Sri Baiaji Srinivasan, Adv. for AKS Law Associates]
'flm"""')~""'"\.-raw-W"-«.,-2
w
C.C.No.32099/2009 p
Bangalore.
DJ
H V Gowthama
Chartered Accountant
M/ s Gowthama and Company
at 23/57, 413T Cross
East End, C Main Road
9'?" Block, Jayanagar,
Bangalore--560069 ._
Crl.P.No.891 2019 A
Between ._ -
1 Pebbleelegy'-oéxzeiofiefs JPvt Ltd
Having their 'Branc'li" Office at
C Gnxy Centre, 4th floor. # 5.
' l\;/l.1,1S€_Ll1'i"l Road-,---«Bangalore--560001,
and also at Raheja Chambers
_ Linking' Road and Main Avenue
_ A Santacrt1z,--"West, Mumbai ~ 400 054
R/bye.Itsa"Director, Aditya Raheja.
it ..l\/l1*«..Aditya Raheja, Director
Pebble Bay Developers Pvt Ltd
it it Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore -- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai »- 400 054. Petitioners
{By Sri Balaji Srinivasan, Adv. for AKS Law Associates)
c"'"'"'u»---.r.'_fl
',.m..i,,,.r >:4w¢'
_ 'V
{By Sri Ravi B Naik, Sr. Adv. for s1~;__H M. tsi.dd33ar:h., Ade T
This Crl.P is filed U/s,482 Cr.P.-C pray-fi;ng"tl1at*. this"a
Hon'b1e Court may be pleasedeyto quash. the 'proceetlings'e.'
initiated against the petitioners tmder s-e_c.'138 of N.l. Act,
pursuant to the order dated;2_4_.12_.O9_ takingvcogrfizance in
ending' before the XVI "Addl. CMM
And:
1
H V Gowtharna
Chartered Accountant
M / s. Gowthama and Company . _
at 23/57, 41st Cross East A I
"C" Main Road, 931 Block A V ' _ ' --._ _ __ .
Jayanagar, Banga1ore--5-6.0069 " .. ;'£{egspondé;ntVl
{By Sri H s Chandramouli, Adv}
Crl.P filed u / S}-4,82 Cr,P;C' blyypthe advocate for the
petitioners praying that Vi'Lhis--_Ho;r1'VbleCourt may be pleased to
quash the proceedings in_itiate::l aga'in;st the petrs. u / Sec.
138 of N.I.Act _p"ursua.nt"t"o vTV.@1'?€"(3%,I.:Cl._€I' d.atedu 24.12.2009 taking
cognizance in Cf;..C'.No".--32€l0'l /O9_p'e'ndi_n.:g before the XVI Addl.
CMM., Bangalore.7:--__ A
cr1.pi.Nov.8Vs2.'2t:=3,g A'
Between' . _ ' -
1 'Pebble --Ba'y':_Develo'pe,1~'s Pvt Ltd
having their B1=an*ch Office at
. _ Onxy Centre,"~§th°floor, # 5,
, *l\/Iuseurng Road, Bangalore--560001,
A' and also at*'l*{aheja Chambers
_ Linking Road and Main Avenue
,. V,_Sa.ntac'ruz West, Mumbai ~ 400 054
its Director, Aditya Raheja.
§\/ir'Aditya Raheja, Director
~ V Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, it 5, Museum Road,
Bangalore -- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -- 400 054. Petitioners
{By Sri Balaji Srinivasan, Adv. for AKS Law Associates]
(By Sri H S Chandramou1i,VAdv,]
taking cognizance in C,_CL'N_o
XVI AddI.CMM:Bangalore.' '~
Crl. P.
H V Gowthama
Chartered Accountant
M / s. Gowthama and Company
at 23/57, 41st Cross, East _
C Main Road, 9th Block, Jayanagar
Banga1ore--560069 " ' A
Cri.P filed u/8.482 C'I."+_>I$.;{.j by
r»Iee.8;;.;_3i_gl.'2"Ci1v:Q_ ~ A
Between' A
1
Peb.ble_Bay f)ev'e.1:ofJers Pvt Ltd
-- .. having their Branch Office at
Gnxy Centre, 45th floor, # 5,
t."Mu"e..eum Road, Bangalore--56000 1,
andaiso at Raheja Chambers
' _"E;.einki1ag_1Road and Main Avenue
VSianttaeVruz West, Mumbai ~ 400 054
its Director, Aditya Raheja.
" .,V__:Mr.Aditya Raheja, Director
Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore -- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -~ 400 054. Petitioners
(By Sri Balaji Srinivasan, Adv. for AKS Law Associates]
_I iResp0n'd':§i'1t C " Vi' ' c '
the 'v.aévoeate"' for the
petitioner praying that this H_on"b1_e*.Court" may be? pleased to
quash the proceedingsinitiated 'against._ the petitioners under
Sec.138 OF N.I. Act, llpursuan'i§,lt.o lthecor-.d_er dated;24.12.09
.321fo2e--/.2009 pending before the
H V Gowthama
Chartered Accountant
M / s. Gowthama and Company
at 23/57, 41st Cross East E'.nd.._
"C" Main Road, 9th Block _ '
Jayanagar, Bangalore~560069
(By Sri H S Chandra1nouli;:_Acly.}
cr1.1>.No.:__s_-_g4 ''
Crl.P filed u /S482 criac: by the o_ advocate for the
petitioner praying thatthis .H'on'b'1e"Gourt may be pleased to
quash the proceedings initiated the petitioners under
Sec.138 of N.I. Act, purs'uar1'tfito theworder c1ated;24.12.o9
taking cognizance in C_.C'.1\Io.82
XVIAdd1.ClV_IMpBanga'lore;" .4
Betxigegmn -- it _p _ __
l 'Pebble Pvt Ltd
r_~;>'"
having their Branch Office at
' " _Om<iy'-Centre, V4.-th floor. # 5.
. 1 Museun"1'RQa.d, Banga10re«560001,
iand also at Raheja Chambers
Link;ii1g_ Road and Main Avenue
1 "Saritacruz West, Mumbai - 400 054
Director, Aditya Raheja.
. '5_i\rIr:Aditya Raheja, Director
' Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore -- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -~ 400 054. Petitioners
(By Sri Balaji Srinivasan, Adv. for AKS Law Associates}
: Resp0_nden.t «- . p it A A
pending before the
AND:
1 H V Gowthama
Chartered Accountant
M/s. Gowtharna and Company .
at 23/57, 41st Cross East I.'nd,"'< p_
"C" Main Road, 9th Block '
J ayanagar, Bangalore-V5600a629__ " _ _ it C' ~,
[By Sri H S Chandramouli,V}'l.dv;}p
Cr1.P filed u/S,-482 Cri.__Pu.'C_ the " advocate for the
petitioner praying thatthis Hon'ble Court may" be pleased to
quash the proceedings" .initia~t.eci{_ against the petitioners under
Sec.138 of NJ. Act, pursuantbto ,t1'_1ev.order dated;2~<l.12.09
taking cognizance in vC;C-.N.:o.32.l'O_4/2009.»'pending before the
Xvi Add1.CMM'Banga§§_ore.
cr1.P.No.as5"g;go1-o-_V__ "
1 Pebble Bay Developers Pvt Ltd
having 'thei'i«T Branch Office at
C " Qnxy Centre, 4th floor, # 5.
' EB/Iuseurn Roa-d;'Banga1ore~560001,
"arid also at Rahega Chambers
- _ xLin1f<mg "Road and Main Avenue
"'SaIltaC1'?JZ West, Murnbai - 400 054
R/by its Director, Aditya Raheja.
2 .. M_r.Aditya Raheja, Director
'Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road.
Bangalore »~v~ 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai -- 400 054. Petitioners
{By Sri Balaji Srinivasan, Adv. for AKS Law Associates}
{----wh_?;m%'s"'**«».....a...,.mx
1 H V Gowtharna
Chartered Accountant
M/ s. Gowtharna and Company' _
at 23/57, 41st Cross East§End,_ ' "
"C" Main Road, 9th Block I v A' .. "
Jayanagar, Bangalore:-560069 .. Respondent
[By s1-1 H s Chandramouli,
Crl.P filed u/s.482 c._r.e1?';vc:_ by the 'advocate for the
petitioner praying that"V~this_':Hon'ble Court may be pleased to
quash the proceedings initiated againstlthe petitioners under
Sec.138 of NJ. Act, pu'I's_uant :to.--'the-for_d.er datec1;24.12.o9
taking cognizance in;C.'C;No.32_1u0_5/2009 pending before the
XVi Add1.CMM;,
cl-1.P.No;&z2.01c. * "
Between . V V V
1 Pebble Bay"DVeve'loppers Pvt Ltd
having their Branch Office at
; C " _"Centre, réith floor, # 5,
' I Museurri agate, Bangalore--56000 1,
fand also at Raheja Chambers
Linking Road and Main Avenue
E.'-aVI1tac.ruz West, Mumbai W 400 054
R/byFits Director, Aditya Raheja.
C' éVir.Aditya Raheja, Director
Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore - 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacmz
West, Mumbai - 400 054. Petitioners
{By Sri Balaji Srinivasan, Adv. for AKS Law Associates)
AND:
H V Gowtharna
Chartered Accountant
M/ s. Gowthama and Company ' ..
at 23/57, 41st Cross East E,nd;_f" ~
"C" Main Road, 9th Block .. ''
Jayanagar, Bar1galore~_56QO69"~
(By Sri H S Chandrarnouli, .
taking cognizance .;_in. ct C.:-No.3
Cr1.P is filed 11,./,_S'.482", 'b_y«.the advocate for the
petitioner praying thatltlhis I4Iof1'l31e_&C-otxrt may be pleased to
quash the proceedings..initi*atedA against'thelpetitioners under
Sec.138 of Act, §,pu1fs1j,antVlto_f~thve«Border dated;24.12.09
V I L 2lfOEl5/2509 pending before the
XVI Addl.5CM_M,_Bang'a4loijc, "
cr1.1:j';V1v5.'89e:?*,5,:2oft;
4- _ _
1 Pebble '}3ay'v.De~:I_elofiers Pvt Ltd
L " havingrtheir Branch Office at
' ,Qnxy Centre,-----4th floor, # 5,
"2\y/luseu_m Road, Bang'alore--560001,
" and' 'also. at Raheja Chambers
,, ...{§inVlnngv.f{oad and Main Avenue
San,t_a.r;'ruz West, Mumbai -- 400 054
,3/by' its Director, Aditya Raheja.
L' vvl_\,-'ir.Aclitya Raheja, Director
Pebble Bay Developers Pvt Ltd
Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore »-- 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai --- 400 054.
. .. Petitioners
(By Sri Balaji Srinivasan, Adv. for AKS Law Associates]
$i...,.wE';"""='""""\a..-.
AND:
[By 311 H s Chandramouii,
cognizance in _C.C.No;32'i*
CMM., Bangalore; '
10
H V Gowthama
Chartered Accountant
M / s. Gowthama and company__ _ * _': .
at 23/57, 41st Cross East End, " .. i' -. V'
''0' Main Road, 9th Block ..
Jayanagar, Bangaiore_--56O06'9. '' -- ._
cm) filed u/s.482 Cr.:P'."C_ by the " 'a.dVoeate for the
petitioners praying th_at~ this" Hon'*b1_e_C'o,urt may be pleased to
quash the proceedings' initiated agairist the petrs. u/ Sec. 138
of N.I..Act pursuant to " the," Vorde--r._ daftedl 24.12.09 taking
O7,/09:'pendin,gVbefore the XVI Addl.
Between _ it "
1
ifiebble Pvt Ltd
haaring their Branch Office at
- .. onxy Ceiitre, 4th' floor, # 5,
Ciivffuseurrr Road, Bangaiore--56000 1 ,
also at Raheja Chambers
., Lirikiiig Road and Main Avenue
-- ._R'S,a11tacIfuz West, Mumbai -- 400 054
V R._/_jb_y'j§ts Director, Aditya Raheja.
:1'\./irjiikditya Raheja, Director
" __T.43ebb1e Bay Developers Pvt Ltd
'Branch Office at Onxy Centre,
4th Floor, # 5, Museum Road,
Bangalore -~« 560 001 and also at
Raheja Chambers, Linking Road
and Main Avenue Santacruz
West, Mumbai --w 400 054. Petitioners
[By Sri Balaji Srinivasan, Adv. for AKS Law Associates]
_a,V;»°--«---....,..w
,.._.£MM"""\=-~w~="*~.
...V Respondent, V
I1
I H V Gowthama
Chartered Accountant
M / S Gowthana And Company
at 23/57,-41st Cross
East End C Main Road
9th Block, Jayanagar _ as
Banga1ore-560069 Respondent. _ _ "
[By Sri H S Chandramouii,
Crl.P fiied u/s_.482 Cr..}?,gC--_ by the "advocate for the
petitioners praying that'v~this_'VHon"b}.e .Co--i1rt may be pleased to
quash the proceedings"initiated. a_gain'st, the petrs. u/Sec.138
of N.I.Act pursuant to "the ."order"~.Vdat_ed 24. 12.09 taking
cognizance in C;C.No,32'iOS,'09..pending before the XVI Addl.
CMM., Bangalijtfiep} ' C' I
ZapThesepj:---etit,ions"coroirxg-on for admission this day, the
Courtgrnade the fo'i«1.owin"g:,4
ff'CsC}~I\}I1\/ION ORDER
utzhesef 'Crir'IV1inal Petition Nos.889 to 898 of 2010
T. Section 482 Cr.P.C. by the same
against the same respondent-
gg cornpiainant, seeking the same relief of quashing the
proceedings in the respective Criminai Cases
.:%pending on the file of the learned XVI ACMM, Bangalore
(hereinafter referred to as the 'Trial Court' for short).
'
12
T he nature of the transactions between the parties, the
nature of the impugned order passed by
in each of the said cases issuing the
petitioners--aeeused, and aiso thelpfjvoi'fene'e--. C'
process has been issued bythe 'lTri_al Court
are all same. Therefore petitions are disposed
of by this common border'. " '
2. Though are listed for
admissivon';'haying reg~ard_to the nature of the impugned
orders tlielrelie;fs--«.so"d.ght for, they are taken for final
dispo-sal .land_V"arguIIients of Sri Balaji Srinivas, the
Counsel for the petitioners in all these petitions
._ 'arid the learned Senior Counsel and Sri
Siddarth the learned Counsel, for the respondent-
" * complainant in Crl.P.Nos.889 and 890 of 2010 and Sri
lid'-:lH[S.Chandra1nouii, the iearned Counsel for the
H respondenteornplainant in ad} other petitions are heard.
Perused the entire averments in the compiaint filed by
33
the respondent--complainant in each of the syaidrepases
before the Trial Court, which are identic_ai,"'e§icep'ti~'.t_he
E
amount of cheque involved in p
respect whereof, Cr1.P.No.8<'L%9/20kt) .
perused the relevant do'cu;t;ents'v~placed._p Aon~--i'.e.cord
both the sides.
3. The fact;Sp_v'i' case of the
complainant the presentation--(if the cheques in the
res];:5ecti\fe" the complainant and their
dishonour, foriithe that there was direction by
the accused to' 'theV'Bank concerned to 'stop payment of
in question; issuing of statutory notice by
._ 't-hex 'coinp1fa'i:1'ant to the accused, receipt of the said
notice: the accused and the date of receipt of the
b 'A reply notice given by the accused to the
27-Vcioniplainant in response to the said statutory notice;
are all same and not in dispute.
E_MHn__§8""""s»*""-a,,.--s.,.»
14
4. On careful reading of the :_.the
compiaint in the respective cases, it cou7id'::be""seen thatp
the foilowing allegations are::..:'made3 edctiinpiaint .
against the petitioners~ac-cu-sped: it
(a) The coniplainant-i.:_ha_s l:.).een'_._a_7Chartered
Accountant. has 'peen__'re"ndering professional
services in finance accounting.
The _1_S1-laccusiszeddgisgia-.:Vpri}I_atedirriited -- Company
regist'ere5d.undue;In_dimICQn~ipanies Act, 1956. Its
__headjofi7i:ce it and branch office at
Banga}_ore;Z¥_ The .'?._1'1CE 3rd and ééh accused are
day to day affairs of the
compayny i_n":he.r.inatter of conduct of its business.
V The 55" accused is an investor in the Ft accused --
ffiiorripany holding its major shares.
the year 2006, accused Nos.2 to 4
Vap'pr_oached the United Estates in connection with
xutheir project known as 'Pebbie Bay'. The
Vvcornplainant has been an Escrow agent. The
complainant has been nominated as Escrow agent
for the said United Estates and the 181 accused ~
Company. The said United Estates is represented
xM
_l 5
by its Proprietor Sri Santhosh Kumar a
Real Estate Consultant and AdViser._. "
(c) As requested by the 1st acc_us,e_d».f
the United Estates --iprofes'sior;a1 it.
expertise and services to lthe'._iét accused in" respect
of the said project;_'which"~ir1volVed'finance arid'
services of Very high m'agnitude'." a result of the
services rendered Sjanpthoshl Kumar, the
Proprietor of the by 'Estates, the 151
accused' .._Cor2fipar1y: able" to procure the
f0r---the construction of 'pebble
bay' co--mp_rising_lovf apartments.
~ , the 1st accused -- Company
pagainapproached the United Estates seeking its
;,."-services"iri""'the sale of the apartments exclusively
'fpeb-ble bay'. As desired by accused Nos.2 to 4,
"United Estates entered into a Service
.-{Agreement with them in the name and on behalf of
z -the lsi accused -- Company for rendering its
services. Under the said agreement, the said
United Estates was entitled for financial payment
for the services rendered to the 181 accused --
Company. Thus the 15? accused -- Company came
to be liable to pay to the said United Estates a
.'_~»»..r-~t. """'*=~M-.»~""""
16
total sum of Rs.11.95,18,812/- (Rupteés-5"cj'eleven
crores ninety five lakhs eighteen tti.ousanti'--ieight,
hundred and twelve) only t0Wafdg...:::':.hé'~.:S'@r\,'i($e3
rendered and invoices jraisegd; lt4_'a1so,V'..}Q'ecan.1e *
liable to pay another sunrof: ayltotvtheg
Complainant being arnou_nt._p'ayVab'1e"' to him'
through United ESVflEtCS.y_V for 'mhyandling the
transactions Va--s"fan lilscroirv _' . " ' a _
(e) 'Company deliberately
failgdi to United Estates.
.thej accused --- Company agreed to
issued' favour of complainant, being
'Escrow the condition that the said
chequ_es.,.,'oei°.held by him an 31.3.2009 and
2':fi1ereafte1'»v--t.he cheques would be presented by the
cornpiainant himself across the bank counter for
""realization of the amount therein and he would
from the said amount towards his
" _ professional fee and pay the remaining amount to
the United Estates towards liability of the 1st
accused --- Company to the said United Estates.
Accordingly, the accused issued as many as nine
cheques each for a sum of Rs.one crore and tenth
cheque for Rs.3,05,56,314/--. Thus ten cheques
.5»-M_<c"""""~'--»~
37
were issued to the complainant by the accused for
total sum of Rs.12,05,56,314/~ toward_s..vpa_yment
of the amount due to the said
which was agreed to be paid T'
complainant.
(fl All the said chequeswere issd.ed:i11" favouriof
the complainant or1.,.,s:1:St.andard
Mumbai Branch said"--.totai§ sum of
Rs.12,05,56,31?_i}V;£'-_.A éhaques were sent to
the complainant the.Vv."'acc5used alongwith
coveri11g.,__'Vlette:r clearly stating
therei'ri.th_ati cheque would not be revoked
for ' whatever -reashon';
' ~ _(g) it 'co:rr'2p1.ainant presented the said cheques
i,A"'tO"if.1'A1<3 BVa1'ik"Vfor their encashment. All the said
came to be returned to the complainant
endorsement as 'stop payment'. The said
V-.fe.n'd'orsement is dated 20.5.2009.
VV'"(.l1) After receipt of the said endorsement from
the Bank, the complainant got issued to all the
accused Nos} to 5 statutory notice dated
12.63.2009 and the same was sent to each of the
said accused under registered post
§,.',_,_w_§"'-~.,»<m..___,,',,_,.»e>
l8
acknowledgement due, speed post.-A.._auVd:44c:"under
certificate of posting, calling upon them
amount under respective .'cheques'-. 'ptotallyg
amounting to Rs.i2,o5,5s,3;i4'/'je.'._ " '
(i) After the receipt of _s°aidl'v«:._:not.icie, the
accused sent a onl taking
untenable gi'o4unds'Il.Hllp_ this!" the accused
filed a suit in before the Civil
Court,4_:"M_ayohValI;.:seeking 3 'direction to the
comp-1ai3'lar;t~to return cheques.
,--~fi} _ "'~;.Sinc:e~.ai}..the said. cheques that were issued
._ bythe-.accused'towards discharge of their liability
x._'1carAI1€ '_C0fbe bounced, the accused committed the
offence under--._""Section 138 of Negotiable
Ins--truvrnents., Act in respect of each cheque.
_'I'here'fore; the complainant proceeded to initiate
3lcproceedilng-s--«against all the accused Nos.l to 5 by
iiiingseparate criminal case in respect of each of
_ cheques.
'C petitioner Nos.l and 2 herein are respectively
accused Nos.1 and 2 in the respective Criminal Cases
r _l3efore the Trial Court. In all these petitions filed under
Section 482 Cr.PC, the petitioners -- accused have
sought for quashing of the entire proceedings in all the
respective criminal cases. Sri Balaji Srinivasan, the
I9
learned counsel for the petitioners -- accused strongly
contends that there are several discrepancies between
the averments made in the complaintl"a_ndf_1th'el
stated in the statutory notice hy__tl{1'e* T.
to each of the accuse,d_4Nos;*~l,_ to 5y.v-inv"res1fiiec't of
dishonour of the said cheques and. Trial Court,
without looking intonthe "rnechanically passed the
order issuing process:-~. petitioners --
accused iV\Tos.lS"'to 5 for the offence
under 'Act and hence all the further
proceedings ~v.all~.vthe~'ii'said criminal cases deserve to be
l¢Ie'v---f-1-,-:.1*ther contends that immediately on
V' [the statutory notice issued by the
l' the accused have filed their civil suit
against the complainant seeking a direction to the
it "..complainant to return to the accused all the said
cheques and therefore till the rights of the parties are
determined by the civil court in the said civil suit, the
Trial Court ought not to have taken cognizance of the
%fvQ
20
said offence and it ought not to have
against the accused for the same an'd"'hei1ce"~fCr this»_
reason also the further proceec1ji1e1g's 'in
Criminal Cases deserVe"lto---.__be llqiiashedylfurther
contends that the also 'file-d,..a civil suit
for recovery of the cheques and
the liability -- the to pay to the
complainant said cheques is
questjonedF.i:n therefore till the said
question-- is by the Civil Court, the
Criminallcourtl to have taken cognizance of
offe"nce....i~and issued process against the
.peti.tioriers"'~ i-accused and other accused. Hence, for
'this reason also the entire proceedings in the respective
Criminal Cases deserve to be set aside.
Per contra, Sri Ravi B Naik, the learned Senior
C Counsel appearing for the respondent -- complainant in
Crl.P Nos.889 and 890 of 2010 and Sri H S
eh~
2 .1
Chandramouli, the learned counsel appgeéaringjg*fo'ri~-,_tlie
respondent -- complainant other'"eight'-igriminal»
petitions together contend very st'ro.ngly=._tl1at isito
be seen by this Court iripa-..petiti'on tinder:-S'ection 482%'
Cr.PC seeking quashing -proceedings is:
'whether the averrriéi'it9« constitute
the ingredients ofl138 N I Act' but
not the; V' therefore the
proceeding's;:l'in':'1all_ 'Criihinal Cases before Court
be Court in exercise of inherent
power Cr.PC. They also contend that
tlfie«:.san1eup_transactions may give rise to a party a right to
' civil suit in a civil court and also a right to
initiate glcrirninal proceedings before a criminal court
against. the other party and therefore mere pendency of
thefcivil suit in respect of the same transaction would
not be a ground to prevent the complainant from
proceeding against the accused for the offence under
Section 138 N lAct.
22
7. On careful reading of the averments___1n the
complaint filed by the complainant in each,_ten
Criminal Cases, which are identical, it .eould:V'bel seen
that the complainant has alleged ig j
existence of legally enforceable'udebt/liability'
him by the accused, issuingvogf the Vsaidg the
accused towards discharge the said"'~de'bt/liability,
presentation of all the the period of
limitation," the said cheques for the reason
that the 'banker by the accused to stop the
payment. of 'statutory notice to the accused
upon the said dishonour, receipt of the said
_ notice by the accused and giving reply to the
laceused No.1 being the Company and other
* acficusetd being responsible to and incharge of all the day
lfltolfday affairs of the Company in the matter of conduct
"of its business. Thus, it is clear that all the said
averrnents constitute all the ingredients of the offence
23
under Section 138 of N I Act as against
to 5.
8. Besides the above, colry t1'iev_--;flIe»tt'er
12.1.2009 addressed by Rahejeg» of
the 15* accused -- theV"2fldi: petitioner
herein and accused' Trial Court),
annexed to" by the petitioners
themselires the 'isl'at'iȤA'nnexure-E. On perusal
of it could be seen that
the aeeused' the complainant ten Cheques
(the details» ofeheique numbers, date and amounts are
forma total sum of us.12,o5,5e,314/~. The
._ "releVant_cont'ents of the said letter read as under:
'V "Please find enclosed below cheques all dated 12.01.2009,
towards your fee of Rs.'1.2,05,56,314/-- (Rupees twelve crore
five lakhs fiftysix thousand three hundred and fourteen
only) with respect to l\/Ifs.Pebble Bay Developers Pvt. Ltd.
assignment" in your favour (Gautama). in any
circumstances, I will not revoke the below cheques issued
towards your fee."
§__m..t,..£'m"""\x,,'<
25
Q
said cheques were not issued by the accusedp'VVto"oIardps
payment of the said amount, but they.
security with a condition that their it
the complainant till 3'1.-4¢20(V}§.v_ never.
appears in the calendar) returned to the
accused on not tl1'¢fi(>=;~srents stated in the
said letter and committed error
in issuing" petitioners 4- accused.
The,nv-r-ec_eip;t' strongly denied by the
no material is produced on
recordlgin theselipetitions, to show that the said letter
.:§z_ti:as;_receivedV"i33r...the complainant. Further, the contents
' even if true and correct, constitute the
'' defences: {ii 1; the accused, which could not be considered
at time of issuing process against the accused and
also be considered in these petitions under
Section 482 Cr.'£-'C seeking quashing of the proceedings
in the said Criminal Cases.
*"""""-v'"'\«.......,.,.---»-s»
r--»--~£3
26
10. In support of his contentions that 3
pendency of the civil litigation between
proceedings before the criminal
same transactions, Which_.are involved _ii;.: the "civil
litigation, shall have to till: "court
determines the rightsuof of the
said transactions, the learned
counsel for placed reliance
on the decisiionof Court in the case of
ANIL KHAN reported
in 1997 said case. the Calcutta High
V' has olose1'i}'ed'"at paragraph No.9 as under:
" 1 anxious consideration to the facts and
lvcifcjinistances of the case, I am of the opinion
although there is nothing to quash the
..vvV__:«irin1inal proceeding at this stage, it is ail the
more essential that the criminal proceeding
should he stayed till the decision of the civil suit.
It is not a question of playing dishonour of
cheque on the ground of insufficiency of fund or
that the amount exceeds the arrangement but it
is a case in which the liability of the parties is to
€.?""'§HYr'\fi'"-igyww
27
be determined first and it is to be
whether the transport company muadev A '
neglect in the matter of storage of the
alleged to have been entrusted
petitioner's company to thedlin and in the event
such a finding whlethorg there wast ~~loss
sustained by the andjif so,
the extent of .'()'V'.E)'.w.T'i.()1,1S1}7vt"Al'.1'VllS is a
question to be d'ecided..v§ithin' of the
civil proceeding"'sinC&eV lblff a criminal
proceeding. is very much
liniitedand"*t.he'se'.--que_stions cannot be disposed
1'61" if:-tits is true. that the
eriminaltp-roeeedaing was instituted a couple of
months befbfe .th'e.iVinstitution of the civil suit but
as 'per submission of the learned Advocate for
Eswtlie petition------«r' which is not disputed by the
Advocate for O.P.No.1, summons were
it the petitioner and his company, at
V.lea'st'after the institution of the civii suit. The
matter in dispute can be settled only by a Civil
vv"'Court and as such the criminal proceeding,
which would from the very nature of the offence
in question does not touch the actual dispute
should remain stay. This Court is not
unmindful to the fact that the criminal
proceedings are seldom stayed till the decision of
<mg
28
a civil suit over the se1f--same matter but having
regard to the facts and circumstances
my opinion is a cornpeiiing circumstances Wi'ie'i1.f i.
for ends of justice there is no way out.bvu"t.to--i.}3:ta.y
the criminal proceeding tiiiyddibsposal of
Suit."
11. As to the exercise of iii-hjerent t' V
Court under Section 482 Cr.gPC tire-'criminal
proceedings, the Hon'hie observed
in the case 'tLj-.Ché;fldrashekar and
others:v1rep_orte'd"Vin_V:{20OQ}~ SCC (Cri) 730 at para No.14
as under: -
514.. It weiiwsettled principle of law
Court in exercise of its
3 "'ini1.e:rent:jurisdiction under Section 482 of
-jthe' Cioddevdmay quash a criminal proceeding
interalia in the event the allegations made
A. in'"'the complaint petition even if they are
T.-'taken at their face value and accepted in
their entirety does not disclose commission
of a cognizabie offence. Some of the
principles which would be attracted for
invoking the said jurisdiction have been laid
-'"'"-»../'"~'-~»-«§__,,.»»
29
down in Indian Oil Corpn. V. NEPC Indz'L_1;"1'T;.td,~..__'__: "
are: [SCC p.748, para 12]
"[i) A complaint Cal-n""b-es
where the allegations iii.
complaint. even if9t1_1ey
their face value antl"'t«aLccepteti._it1Aatheist H
entirety. do not constitute:
any offence or"niake--_otit ;tlieijvcase alleged
against the accused'. :_
has
toiiae but without
.fhé:j'1iiierits~tt'6fthe allegations.
v°,Neitherl inquiry nor a
1iieticulous4V'analjrsis of the material nor
_an aes_essme.nt of the reliability or
;,,."tgemiine1ies'sivof the allegations in the
"v._co;i1'z;::ilaint, is warranted while examining
for quashing of a complaint.
i[ii] A complaint may alse be
quashed where it is a clear abuse of the
process of the court, as when the
criminai proceeding is found to have
been initiated with mala fides/malice
for wreaking vengeance or to cause
Mwmw
30.
harm, or where the allegations i if
absurd and inherently iInprobabl_e,__p'v_"'~.._
(iii) The power to cinashlsihailhi
however, be used to stifle. or. scuttipeta A'
letigimate prosecnti_o'n..p> 'The'
should be used spaifingiyn
abundant caut.i_oh.
[iv] ' _*T_he required
to ixzerléaiatiiill'. 5r.epro4dt1e'e'VV""'the legal
sffeilcep alleged. If the
neCces5s_ar3"f:'ft foundation is laid in
:"~_the on the ground
that" a VVieW'..irigi?edients \ have not been
_ .. pplgtated 'detail, the proceedings should
it 35"1'1o"t~__ be diiashed. Quashing of the
if s. is warranted only where the
V coniplvaint is so bereft of even the basic
v--,."faet's. which are absolutely necessary for
if inaking out the offence.
(V) A given set of facts may make
out: (a) purely a civil wrong; or (b)
purely a criminal offence; or (C) a civil
wrong as also a criminal offence. A
wf
31
commercial transaction or a contractfgial' 5 »
dispute, apart from furnishing aflcauseif in
of action for seeking rernedyin cjivil_.}aw*,._ V
may also involve a criminalinoffencei"As it
the nature and Vs'e.ope half a
proceeding are differe'nLt"from
proceeding, vthxe 1nei'eii_:'faict__ that'"th'e
complaint reilates } a"'viii:c.ommercial
transaction 0A1.'.i-- :of".icontifa'ct, for
which 'ajcfivil ifemedy "is"'a:v'3i.1.¥1:iile or has
been is_:1ot_ itself a ground to
_ __ the _ proceedings. The
test' allegations in the
it'cgornplainctifdisclose='a criminal offence or
" A it
it "['Eni_p_hvasis supplied by me]
above observations of the I-Ion'ble
I am of the considered opinion that the
V'-»entire" .a__ilegations in the complaint in each of the said
Criminal Cases, as extracted supra. taken at their
...face Value and accepted in their entirety, prima facie
constitute the case against the petitioners - accused for
the offence under Section 138 N I Act and therefore,
33
the matter of conduct of its business but the petitioners
herein, who have sent their reply to the
have not traversed the said averrnents.
14. Learned counsel for the-"Vmlpetitione.rsj;V:"
reliance on the decision of the Sup17§:if;1e'*
in the case of Sur'yalakshni'i=,:.C£-tton vs
Rajvir Industries Limvilcéd aridmVolti'i¢rs"reported (2008)
13 SCC 678, strongly contents of the
\Arritten.vi'state.rr:enltifiledloy the"Co'mplainant herein in the
originalsnit filralplcldljiyl_'thei'*~pe.titi0ners herein against him
seeking direction__of thelcivil court that he shall return
"to a.ecused alllvthevten cheques in question issued-to
.hi'r_r_i are inconsistent with the
avermentsivniade by him in the present complaint and
l""'--__l"'therefore: the proceedings against the petitioners in the
case deserve to be quashed. The Hon'ble
-S-tipreme Court has observed at paragraph No.22 of its
ll judgment in the said Case as under:
.
-,5?»-----'-»,._, The courts cannot lose sight of the fact that in certain matters. both civil proceedings arid, criminal proceedings would be maintainabIe..f"f*<.Vp:
[Emphasis supplied by me] I it
15. As observed above by the H__cn'h1e * though the High Court may consi'de1i:'._A_' a petition under Section ,any of = L' unimpeachable character he produce.d by the etitioners --- accused,' dti'1e'*. i'e;adir:<%shs11ch as laint, written"s'iatefi;1erit;ft.; cannot be"ta»!tén to be the documents of 'ura.irrip_eachcebie'2.cF1qrg1cter' inasmuch as, the aVervm_ents'"'~ .th_eii*-pleadings are subject to proof.
thoughihe complainant and the accused ._.haV'e respective civil suits against each other, nctpiiiiclined to consider, for the purpose of the prese.ni:_.Ai:'petitions, their pleadings in their said suits. it =.F'urt'her observations of the Hon'b1e Supreme Court in
-»v.-the said case that both the civil and criminal proceedings in respect of the same transactions would be maintainable, support the case of the respondent- «r"""(w\'M\'"/A 36 complainant herein but not that of the petitioners- accused.
16. Learned counsel for the petit1oners_'-'gtheei * upon the following decisions.
1) (1999):; see 221): {Cent1rcii.éBttm'€oj'Irj§d.to
--vs- Saxons Farms and others]:
it} (2000) 2 scc 385:(Rfi;fnbow "'C.oZoar and another --vs-- State of"and..others)...,. ac) AIR 2006 SC Pttryab & ors. Vs. GCU1PCLfRCU} " V ..
w}VVv(2002}w0.f;? fliunettocom Electrontcs {I} Pvt. '--vs-'G;-!.t and another) v} (2009) 1 Kalyani --vs- Janak C Mehta ; ' "and others} ' V';-n Ei9§2A...Supp (1 ) scc 335:{Staf:e of Haryana and 3 _ Bhcyan Lal and others) A 4 SCC 54:{KrLshna Janardhan Bhat ---vs-- .-.IA)att&1traya G Hegde} AA .A e_1';iti]VVII..R 2009 Kar 2331: {B Indramma --vs-- Sri Eshwar)
ix) ILR 2009 Kar 1 '?2:{Sri A Viswanatha Pat -us- Sri Vivekananda S Bhat} x} ILR 2009 Kar 1633: (Kumar Exports --vs~A Shanna Carpets) (...%g'»_.e..»-k,,/ 37 Suffice it to say that the above decisions are all'-.not relevant for the purpose of disposal of Therefore, I am not inclined to discuss V _ decisions in detail.
For the reasons aforesaid;»--1 . 'ORDER ' j' " = - .. i All the Crl.P are hereby dismissed as devoid of Qrnieritsij No order as to costs. "
of~__this'«.:order shall be placed in Crl.P 2.010 and----a«'copy thereof in each of other Cr1.P 'i\T'os;89o;'to"'E§98. of 20 10. };of this order shall also be sent forthwith to the_ cojiirt of the learned XVI ACMM, Bangalore, for " in_formation and compliance.
Sdf-in Iud§§ JT/SS/bkm.