Sri.Vinay L. Deshpande vs Sri.C.A. Nizamuddin Ahamed
2021 Latest Caselaw 1320 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 22ND DAY OF JANUARY, 2021

                           BEFORE

        THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL PETITION No.2610 OF 2019

Between:

Sri. Vinay L. Deshpande,
S/o. Late Laxman Deshpande,
Aged about 71 years,
Director of M/s. Processor Systems
(India) Pvt. Ltd., No.24, Classic Building,
Richmond Road, Bengaluru-560025.
                                               ... Petitioner
(By Sri. Prashanth U.T., Advocate for
    Sri. M.S.Bhagwat, Advocate)

And:

Sri. C.A.Nizamuddin Ahamed,
S/o. Sri. Ajaz Ahamed,
Aged about 33 years,
Residing at No.18, Aasra Manor,
Chick Bazar Road Cross,
Tasker Town,
Shivajinagar, Bengaluru-560051.
                                              ... Respondent
(By Sri. S.Nagendra Dikshit, Advocate)

       This Criminal Petition is filed under Section 482 of
CR.P.C. praying to quash the complaint and proceedings in
C.C.No.13101/2016 (Annexure-A and B) pending on the file
of the 26th A.C.M.M., Bengaluru in so far the petitioner
herein is concerned.
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       This Criminal Petition coming on for Admission this
day, the court made the following:


                            ORDER

This petition is filed under Section 482 of Cr.P.C.

praying this court to quash the complaint and proceedings

in C.C.No.13101/2016 which is pending on the file of 26th

Addl. Chief Metropolitan Magistrate, Bangalore.

2. The factual matrix of the case is that respondent

herein has filed a complaint under Section 200 r/w Section

138 of N.I. Act. The contentions of the complainant in

terms of the complaint is that the petitioner is the Director

of the 4th accused, i.e., the Company by name M/s.

Processors Systems(India) Pvt. Ltd. It is also averred in

Para 4 that the accused have availed the financial

assistance from him and his mother by way of loan to the

tune of Rs.1 crore 64 lakhs at regular intervals by way of

cheque, RTGS transfer as well as by cash between 2010 to

2014. The said amount was jointly paid to accused no.1 to

4 by the complainant and his mother Smt. Farida Banu.

Further, it is averred that the accused persons failed to

return the amount as committed. It is also alleged in the

complaint that on 13.10.2014, the first accused and this

petitioner have confirmed the entire liability and agreed to

repay the entire amount borrowed by accused no.1 to 4

and also agreed to pay interest at the rate of 3.5 % p.m.

from the date i.e., from 3.11.2014 and accordingly gave a

letter of confirmation to the complainant and his mother

that they owe a sum of Rs.1 crore 64 lakhs as principal and

Rs. 62,37,000/- as interest. It is also averred in Para 7

that they have agreed to repay the said sum. But they

failed to do so and hence towards clearing the said liability,

the first and second accused have jointly and severally

issued two different cheques of both accused no.1 and 2

together for a sum of Rs. 2,26,37,000/-. The first cheque

bearing No.007245 for Rs. 1,64,000/- drawn on Bank of

India signed by accused no.1 and second cheque bearing

No.22878 for Rs. 62,32,000/- drawn on Bank of India,

Richmond Town, signed by accused no.2 and was issued in

favour of mother of complainant Smt. Farida Banu.

3. The learned counsel for the petitioner submits that

the cheque in question is not issued by this petitioner and

he is also not the author of the said cheque. The other

contention that he is not in the affairs of the company. The

learned counsel in support of his argument has relied upon

the judgment of this court passed in Crl.P.No.6544/2016

and brought to notice of this court at Para 7 of this

judgment with regard to invoking the offences under

Section 138 or 141 of the Act and further brought to the

notice of this court that this court has observed that the

petitioner is neither an office bearer of the Company which

is in default of the alleged loan availed from the

complainant. It is observed that even in the complaint,

specific averments are made that the liability is

acknowledged only by the first and second accused and not

they the present petitioner.

4. The learned counsel also relied upon the judgment

of the Apex Court in 2015 (9) SCC 622 and relied upon

para 9 of the judgment that the Apex Court in the judgment

referred to Section 138 of N.I.Act, the following essentials

have to be met for attracting a liability under the said

Section. The first and foremost being that the person who

is made liable should be the drawer of the cheque and

should have drawn the cheque on an account maintained by

him with a banker for payment of any amount of money to

another person from out of that account for discharge in

whole or part, of any debt or other liability. We see that

from the bare text of the Section it has been stated clearly

that the person, who draws a cheque on an account

maintained by him, for paying the payee, alone attracts

liability.

5. The learned counsel also relies upon the judgment

of the Apex Court reported in 2013(8) SCC 71 and brought

to notice of this court at para 2 of this judgment. In this

judgment also the Apex court in order to attract Section

138 of N.I.Act has made an observation that it is only the

drawer of the cheque which can be prosecuted and there

cannot be any prosecution other than the person who is the

author of the cheque.

6. Having heard the petitioner's counsel and perusal

of the records, this petitioner does not dispute in this

petition that he is not the Director of the Company of

accused no.4. The complainant in the complaint in para 4

specifically contend that this petitioner is the Director of the

Company which has been arrayed as accused no.4. Apart

from what is stated in the compliant, is that this petitioner

and other accused persons have jointly received the loan

amount of Rs.1 crore 64 lakhs. The specific allegation in

para 6 is that this petitioner and also accused no.1, both of

them have confirmed the entire liability on 13.10.2014 and

in confirmation of the same in para 7 states that they have

issued the cheques, two in number, one issued by accused

no.1 and second is by this petitioner. Though the second

cheque is not the subject matter of this case, the

averments made in the complaint is specific that this

petitioner is the Director of the Company and also in the

complaint it is specifically mentioned that he being the

Director of the Company availed the loan along with first

accused and subsequent to availing the loan he has

confirmed that he owes money to the tune of Rs.1 crore 64

lakhs and also interest of Rs.62,37,000/-. In the complaint

specific averment is made that on 13.10.2014 vide his

letter confirmed the due being the Director of the Company

owes money and he represents the Company. The very

contention that he is not the author of the cheque and also

he is not in the affairs of the Company cannot be accepted

at this stage. It requires full fledged trial whether he is

involved in the affairs of the company and whether he is

director or not. The allegation is specific that the petitioner

also along with other accused borrowed the money and

confirmed the liability vide his letter dated 13.10.2014.

The judgments of the Apex Court is not applicable to the

case on hand when the specific averments are made that

he being the director of the Company and borrowed the

money and also confirmed the liability vide his own letter.

The judgment of this court also in Crl.P.No.6544/2016 is

not applicable since in the said case it is observed that the

petitioner is neither an office bearer of the Company and

further observed that the specific allegation in the

complaint is that the acknowledgment is only of the first

and second respondents. In the case on hand it is specific

that the petitioner being the Director of the Company

borrowed the money along with the other accused and also

acknowledged the liability vide his letter 13.10.2014. When

such being the facts and circumstances of the case, the

judgments are not applicable to the case on hand.

In view of the above discussions made, I pass the

following :

ORDER

Petition is dismissed.

Sd/-

JUDGE

sd