Sri Parveen Kumar vs Sri Devki Nandan Jain
2021 Latest Caselaw 628 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2021

                          BEFORE

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

              CRIMINAL PETITION No.4071/2019
BETWEEN:

SRI. PARVEEN KUMAR
S/O. SRI. OMPRAKASH
C/O. OM SWEETS
AGED ABOUT MAJOR
RESIDING AT PURANI SABZI MANDI
SOHNA, GURUGRAM DISTRICT
HARYANA STATE - 122 103.                        ... PETITIONER

              (BY SRI. ABHILESH J., ADVOCATE)

AND:

SRI. DEVKI NANDAN JAIN
@ DWARKA NATH
S/O. SRI AMARNATH
AGED MAJOR
ADOPTED SON OF SRI. YAD RAM
RESIDENT OF SOHNA, TEHSIL SOHNA
GURUGRAM DISTRICT
HARYANA STATE - 122 103.

PRESENTLY RESIDING AT
C/O MANOJ KUMAR JAIN
B-3/305, VICEROY BOULEVARD APARTMENT
TULASI THEATRE ROAD, MARATHAHALLI
BENGALURU - 560 037.                       ... RESPONDENT

           (BY SRI. P. PRASANNA KUMAR, ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE ORDER OF THE LEARNED
22ND A.C.M.M., TAKING COGNIZANCE AND ISSUING SUMMONS
TO THE PETITIONER DATED 08.09.2017 AND ENTIRE
PROCEEDINGS IN C.C.NO.22717/2017 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT, PRODUCED AS
ANNEXURE-A.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

Though the matter is listed for admission, with consent of

the parties taken up for final disposal.

2. Heard the learned counsel for the parties.

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

praying this Court to quash the order of taking cognizance dated

08.09.2017 and entire proceedings in C.C.No.22717/2017 on the

file of XXII Additional Chief Metropolitan Magistrate at

Bengaluru.

4. The factual matrix of the case is that respondent

invoked Section 200 of Cr.P.C. against this petitioner and also

other accused persons for the offence punishable under Section

138 of Negotiable Instruments Act, 1881 (for short 'the N.I.

Act'). The Trial Court vide order dated 08.09.2017 passed an

order of taking cognizance. While passing the order, it is

observed that the contents of the complaint and the oral and

documentary evidence adduced by the complainant have been

perused. That on perusal of the same, it prima facie appears that

the accused has committed the offence punishable under Section

138 of the N.I. Act. Hence, the present petition is filed before

this Court.

5. Learned counsel for the petitioner would vehemently

submit that there is no averment in the complaint that the

petitioner was incharge of the affairs of the Company. In support

of the said contention, learned counsel relied upon the

judgments of the Apex Court in the case of N.K. Wahi v.

Shekhar Singh and Others reported in (2007) 9 SCC 481

and in the case of DCM Financial Services Limited v. J.N.

Sareen and Another reported in (2008) 8 SCC 1. Referring to

these two judgments, learned counsel would submit that if the

petitioner is not incharge of the affairs of the Company and there

is no averment under Section 141 of the N.I. Act, the

proceedings are liable to be quashed. There is no dispute with

regard to the principles laid down in the judgments referred

supra and the Court has to take note of the fact as to whether

any averment has been made in the complaint.

6. Having perused the averments made in the

complaint in para Nos.4 and 5, the specific averment is made in

the complaint that this petitioner is also a partner along with

others in the partnership firm of accused No.1. The specific

averment is made in para No.5 that accused Nos.2 to 5 have

borrowed the loan from the complainant on various occasions

and listed out the details of borrowing the loan in para No.5.

Hence, the very contention of the learned counsel for the

petitioner that he was not incharge of the affairs of the Company

of accused No.1 cannot be accepted at this stage when specific

averment is made in para Nos.4 and 5 that he is one of the

partners of the firm and borrowed the loan. The principles laid

down in the judgments referred supra are not applicable to the

case on hand when the petitioner is one of the partners of the

firm and as well, he has borrowed the loan along with other

partners i.e., accused Nos.2 to 4.

7. Learned counsel would submit that he is not the

signatory. The fact that whether he has signed or involved in

availing the loan as a partner along with others has to be

decided in trial. The petitioner is having liberty to raise those

defence before the Trial Court. The powers under Section 482 of

Cr.P.C. has to be exercised sparingly and in this petition, the

defence of the petitioner cannot be considered. Hence, there is

no merit in the petition.

8. In view of the discussions made above, I pass the

following:-

ORDER The petition is dismissed.

In view of the dismissal of the main petition, I.A.No.1/2020 does not survive for consideration and the same is dispose of.

Sd/-

JUDGE

PYR