Karnataka High Court
Sri. Shiva Shankara K N vs Sri. Narassimha Ganapathi Hegde on 24 September, 2024
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NC: 2024:KHC:39529
CRL.P No. 8255 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 8255 OF 2021
BETWEEN:
SRI. SHIVA SHANKARA K.N.
S/O NARAYANA RAO,
AGED ABOUT 73 YEARS,
MANAGING DIRECTOR OF
M/S. GAYATHRI STRUCTURAL AND
ROOFING PRIVATE LIMITED,
NO.103, GURU KRUPA,
11TH CROSS, 8TH MAIN,
MALLESHWARAM,
BENGALURU - 560 003.
...PETITIONER
Digitally signed (BY SMT. SUSHMITHA .K.,
by SWAPNA V
Location: high SRI. RAJENDRA K.R., ADVOCATES)
court of
karnataka
AND:
SRI NARASSIMHA GANAPATHI HEDGE,
S/O SRI GANAPATHI HEDGE,
AGED ABOUT 49 YEARS,
MANAGING PARTNER
M/S. SUMUKHA ENGINEERS,
OFFICE AT: ARUNODAYA NILAYA,
NEAR SANJANA HOSPITAL,
MARUTHI EXTENSION,
MALUR TOWN, KOLAR
DISTRICT - 563 130.
...RESPONDENT
(BY SRI. GOPALAKRISHNAMURTHY .C., ADVOCATE)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.842/2021 (PCR.NO.12/2021) ON
THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, AT MALUR
P/U/S 138 OF N.I ACT.
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NC: 2024:KHC:39529
CRL.P No. 8255 of 2021
THIS CRL.P, COMING ON FOR HEARING - INTERLOCUTORY
APPLN, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL ORDER
Petitioner being the accused in CC No.842/2021 on the file of the learned II Additional Civil Judge and JMFC, Malur, registered for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act') is before this Court seeking to quash the criminal proceedings initiated against him.
2. Brief facts of the case are that, the respondent as complainant has filed a private complaint in PCR No.12/2021 against the petitioner alleging commission of the offence punishable under Section 138 of NI Act. The Trial Court took cognizance of the offence and registered CC No.842/2021. The petitioner is seeking to quash the criminal proceedings initiated against him.
3. Heard Smt. Sushmitha K., learned counsel for Sri. Rajendra K.R., learned counsel for the petitioner and Sri. Gopalakrishnamurthy.C., learned counsel for the respondent. Perused the materials on record.
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NC: 2024:KHC:39529 CRL.P No. 8255 of 2021
4. Learned counsel for the petitioner contended that the petitioner is the Managing Director of the Private Company by name M/s Gayathri Structural and Roofing Private Limited. The Company is not arrayed as accused. Under such circumstances, in view of Section 141 of the NI Act, the complaint is liable to be dismissed. Learned counsel also submitted that the cheque relied on by the complainant was never issued in favour of the complainant Company. But it was issued in favour of Star Engineers for supply of fabrication and erecting the structural materials. The cheque was issued as security and it was a blank cheque with the signature of the petitioner. Under such circumstances, the complainant could not have maintained the complaint. Therefore, she prays for allowing the petition by quashing the criminal proceedings.
5. Per contra, learned counsel for respondent opposing the petition submitted that the cheque in question was issued by the petitioner towards discharge of legally enforceable debt. However, by mistake, the Company i.e., M/s Gayatri Structural and Roofing Pvt. Ltd was not arrayed as one of the accused before the Court in compliance of Section 141 of NI Act. The defect is curable one and it will not go to the root of the matter. -4-
NC: 2024:KHC:39529 CRL.P No. 8255 of 2021 Under such circumstances, application IA No.1/2024 came to be filed before this Court seeking permission to implead M/s Gayathri Structural and Roofing Pvt. Ltd., as one of the accused before the Trial Court. Hence, he prays for allowing the said application. He submits that since an interim order is in operation, the Trial Court is not accepting any such applications for consideration. Therefore, he prays for passing appropriate orders on the application. On merits he submits that the defence taken by the petitioner could not be considered at this stage by the Court as it is for the Trial Court to consider the same after full-fledged trial. Accordingly, prays for dismissal of the petition.
6. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"1. Whether application IA No.1/2024 filed by the respondent is liable to be allowed?
2. Whether the petitioner has made out any grounds to allow the petition and to quash the criminal proceedings initiated against him?"-5-
NC: 2024:KHC:39529 CRL.P No. 8255 of 2021 My answer to the above points is as under:
Point No.1: In the Affirmative Point No.2: In the Negative for the following:
REASONS
7. The petitioner being the accused in CC No.842/2021 is seeking to quash the criminal proceedings mainly on two grounds. The first contention raised by the petitioner is that the Company i.e, M/S Gayathri Roofing Structural and Roofing Pvt. Ltd., of which the petitioner is the Managing Director is not arrayed as the accused. Under such circumstances, the petitioner is not liable for conviction in view of Section 141 of NI Act. The second contention that was raised by the petitioner is that the cheque in question relied on by the respondent was in fact issued as security by the petitioner in favour of the Star Engineers for supply of fabrication and erection of structural materials. The said cheque was misused by the complainant and therefore, Section 138 of NI Act is not made out.
8. The respondent has filed IA No.1/2024 under Section 482 of Cr.P.C seeking permission to implead M/s Gayathri Roofing Structural Pvt. Ltd., of which the petitioner is -6- NC: 2024:KHC:39529 CRL.P No. 8255 of 2021 the Managing Director, as one of the accused before the Trial Court.
9. It is the contention of the learned counsel for the respondent that the complainant is a layman who does not know the consequences of law and he realized that there is mistake in not arraying the Company as one of the accused. The said mistake is a curable defect and therefore, the complainant wants to cure the defect by arraying the Company as one of the accused. The position of law that the defect pointed out by the complainant is a curable defect is not disputed by the learned counsel for the petitioner. Admittedly, trial before the Trial Court has not yet commenced. Under such circumstances, no prejudice would be caused to the petitioner if the application IA No.1/2024 is allowed and the Company of which the accused is the Managing Director is arrayed as one of the accused. Moreover, it is the specific defence taken by the accused that in the absence of the Company as one of the accused, the petitioner is not liable for conviction in view of Section 141 of NI Act. under such circumstances, I deem it appropriate to allow IA No.1/2024 and permit the respondent to array M/s Gayathri Structural and Roofing Pvt. Ltd as one of -7- NC: 2024:KHC:39529 CRL.P No. 8255 of 2021 the accused before the trial Court in CC No.842/2021. Accordingly, I answer Point No.1 in the Affirmative.
10. The next contention raised by the learned counsel for the petitioner is that the cheque in question was blank and was issued as security in favour of M/s. Star Engineers for supply of fabrication and erection of structural materials. The said blank cheque was misused by the complainant.
11. Learned counsel contends that several documents are produced before this Court in support of such contention and the same are to be taken into consideration, at the most such contentions could be raised by the petitioner before the trial Court during trial. This Court is not sitting as a trial Court to consider the defence that could be raised by the petitioner before the trial Court. Hence, I am of the opinion that the said contention raised by the petitioner cannot be the ground to quash the criminal proceedings. It is for the trial Court to consider the contentions of both the parties and to form an opinion as to whether the complainant is successful in proving the guilt of the accused beyond reasonable doubt or not and whether the accused is successful in probabalising his defence. -8-
NC: 2024:KHC:39529 CRL.P No. 8255 of 2021 Hence, I am of the opinion that petition is liable to be dismissed. Accordingly, I answer Point No.2 in the Negative and proceed to pass the following;
ORDER IA No.1/2024 filed by the respondent under Section 482 of Cr.P.C is allowed.
Respondent is permitted to array M/s Gayathri Structural and Roofing Private Limited as one of the accused before the Trial Court in CC No. 842/2021.
The Criminal Petition is dismissed.
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(M G UMA) JUDGE BH List No.: 2 Sl No.: 16