Karnataka High Court
Smt. Asha P Shetty vs Smt. K Rupa on 26 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.7249 OF 2016
C/W
CRIMINAL PETITION NO.7250 OF 2016
In Crl.P.No.7249/2016
BETWEEN:
Smt. Asha P Shetty,
W/o K.Prakash Shetty,
Aged about 49 years,
R/a No.9, "Asha" Ali Askar
Cross Road, off Cunningham
Road, Bangalore-560052.
...Petitioner
(By Sri. K.S.Chandrahasa, Advocate)
AND:
1. Smt.K.Rupa,
W/o Guruprasad,
Aged about 43 years,
No.1586, 2nd Stage,
6th Main, E Block,
Rajajinagar,
Bangalore-560 010.
2. M/s Magnum Properties
Developers and Home
Finance Group,
No.198/6, F5,BSR Arcade,
2
1st Floor, Gandhi Bazaar
Main Road, above coffee day,
Basavanagudi,
Banglaore-560 004.
Rep. by its Alleged
Managing Director.
3. Sri.Roshan B.Shetty
S/o Sri.Bujanga Shetty,
Major,
Alleged Managing Director
Of Magnum Properties
Developers and Home
Finance Group.
No.198/6,F5,BSR Arcade,
1st Floor, Gandhi Bazaar
Main Road, above coffee day,
Basavanagudi,
Banglaore-560 004.
4. Smt. Daya Roshan B Shetty,
W/o Sri.Roshan B Shetty
Major,
Alleged Managing Director
Of Magnum Properties
Developers and Home
Finance Group.
No.198/6,F5,BSR Arcade,
1st Floor, Gandhi Bazaar
Main Road, above coffee day,
Basavanagudi,
Banglaore-560 004.
...Respondents
(By Sri.K.Gurudhatta, Advocate for R1;
R2 to R4 are served)
This Criminal petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceeding in
C.C.NO.14361/2016 pending before the XIII A.C.M.M,
3
Bangalore against the petitioner herein who is accused
No.4 before the trial Court.
In Crl.P.No.7250/2016
BETWEEN
Smt. Asha.P.Shetty,,
W/o K.Prakash Shetty,
Aged about 49 years,
R/a No.9, "Asha" Ali Askar,
Cross Road, Off Cunningham Road,
Bangalore-560052.
...Petitioner
(By Sri.K.S.Chandrahasa, Advocate)
AND
1. Smt.K.Rupa,
W/o Guruprasad,
Aged about 43 years,
No.1586, 2nd Stage,
6th Main, E Block,
Rajajinagar, Bangalore-10.
2. M/s.Magnum Properties
Developers and Home Finance Group,
No.198/6, F5, BSR Arcade,
1st Floor, Gandhi Bazaar,
Main road, Above Coffee day,
Basavanagudi,
Bangalore-560004.
Rept. By its alleged
Managing Director.
3. Sri.Roshan.B.Shetty,
S/o Sri.Bujanga Shetty,
Major,
Alleged Managing Director
Of M/s.Magnum Properties
Developers and Home Finance Group
4
No.198/6, F5, BSR Arcade,
1st Floor, Gandhi Bazaar,
Main road, Above Coffee day,
Basavanagudi,
Bangalore-560004.
4. Smt.Daya Roshan B Shetty,
W/o Sri.Roshan B Shetty,
Major,
Alleged Managing Director
Of M/s.Magnum Properties
Developers and Home Finance Group
No.198/6, F5, BSR Arcade,
1st Floor, Gandhi Bazaar,
Main road, Above Coffee day,
Basavanagudi,
Bangalore-560004.
...Respondents
(By Sri.K.Gurudhatta, Advocate for R1;
R2 to R4 are served)
This Criminal petition filed under Section-482
Cr.P.C praying to quash the entire proceedings in
C.C.No.14363/2016 pending before the XIII A.C.M.M
Bangalore against the petitioner herein who is accused
No.4 before the trial court.
These criminal petitions coming on for Orders, this
day, the Court made the following:
ORDER
Petitioner who has been arraigned as accused No.4 in C.C.Nos.14361/2016 and 14363/2016 has filed these two petitions for quashing of said proceedings. Said proceedings is an off shoot of PCR Nos. 4984/2016 and 6209/2016 filed by respondent No.1 herein alleging that 5 respondent Nos.2 to 4 and the petitioner had assured to sell site in her favour and an agreement of sale dated 30.06.2011 was entered into between parties pursuant to which certain amounts have paid as advance. On account of agreement between parties having not fallen through, complainant has demanded for refund of amount and cheques came to be issued by accused Nos. 1 and 2 which came to be dishonoured for want of funds and as such, it is alleged that all the accused persons have committed offence punishable under Section 138 of Negotiable Instruments Act, 1881.
2. I have heard the arguments of Sri.K.S. Chandrahas, learned counsel appearing for petitioner and Sri.K.Gurudhatta, learned counsel appearing for respondent No.1. Respondent Nos.2 to 4 are served and there is no representation.
3. It is the contention of Sri.K.S.Chandrahas, learned counsel appearing for petitioner that neither in the complaint nor in the notice issued prior to the filing of complaint under Section 200 of Cr.P.C, there is any 6 allegation of petitioner having issued cheque or was responsible in any way for day-to-day affairs of the purported firm or company and as such, continuation of proceedings against petitioner who is arraigned as accused No.4 would be an abuse of process of law. Hence, he prays for quashing of the proceedings insofar as petitioner is concerned.
4. Per contra, Sri.K.Gurudhatta, learned counsel appearing for respondent No.1-complainant would submit that transaction in question relates to purchase of a site by the 1st respondent-complainant and she had entered into an agreement to purchase a site with accused No. 1 to 3 along with accused No.4, pursuant to the same the payment was made by the complainant. As the transaction having not fallen through, she had demanded refund of amount and accordingly, cheques came to be issued by accused Nos.1 and 2. Accused No.3 is also responsible for the day-to-day affairs of the company and petitioner being privy to the contract of agreement of sale dated 7 03.06.2011, proceedings against her also requires to be continued. Hence, he prays for rejection of the petition.
5. Having heard the learned counsel appearing for both parties and on perusal of records and averments made in the complaint, would clearly disclose that except stating that complainant had entered into an agreement of sale with accused No. 4 i.e., petitioner herein, there are no other averments made to the effect that either the petitioner (Accused No.4) was incharge of the day-to-day affairs of the firm i.e., accused No.1 or the petitioner having issued the cheques in discharge of debt. In other words, there is no offence made out against petitioner. In other words, there is no material placed against petitioner by respondent No.1-complainant before the trial court to establish that there is any semblance of offence having committed by petitioner-accused No.4 under Section 138 of Negotiable Instruments Act, 1881. On the other hand, averments made in the complaint would suggest that offence under Section-138 if any, is alleged to have been committed by accused Nos.1 to 3 8 i.e. respondent Nos.2 to 4 herein. In that view of the matter, continuation of the proceedings insofar as petitioner is concerned would nothing but the abuse of process of law.
6. It is also required to be noticed that even accepting all the contentions raised by the complainant before the trial court is accepted as truth, even then petitioner herein is accused No.4 cannot be convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, since there is no complaint against petitioner herein (Accused No.4) for having issued cheque from her account and she having accepted issuance of cheque and thereby offence punishable under Section 138 of Negotiable Instrument Act, 1881 having been committed by her.
Hence, following order is passed;
ORDER
i) Criminal Petitions are allowed.
ii) Proceedings in C.C.Nos.14361/2016 and
14363/2016 pending on the file of the
9
XIII Additional Chief Metropolitan
Magistrate, Bengaluru is hereby
quashed insofar as petitioner (Accused No.4) only.
SD/-
JUDGE SB/NS