Smt. Anita Srinivas vs Sri Seth Hotchand Lakshmichand
2021 Latest Caselaw 2869 Kant

                                               CRL.P.4581/2021
                                1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 20TH DAY OF JULY, 2021

                            BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                     CRL.P.No.4581/2021

BETWEEN:

Smt. Anita Srinivas,
W/o Srinivas,
Aged about 56 years,
Director of M/s. Headwin
Exim Pvt. Ltd.,
O/at No.116/2,
1st Floor, 11th Cross,
Malleswaram,
Bangalore - 560 003.                        ... PETITIONER

(By Sri Ravikumar.M.B., Adv.)

AND:

1.     Sri Seth Hotchand Lakshmichand,
       S/o late Hotchand,
       Aged about 75 years,
       No.12/3, 1st Cross, Jeevan Jyothi,
       Yamunabai Road, Madhavanagar,
       Bangalore - 560 001,
       Represented by SPA Holder,
       Kailash S/o Seth Hotchand
       Lakshmichand, Age 42 years.

2.     M/s. Headwin Exim Pvt. Ltd.,
       R/at No.116/2, 1st Floor,
       Unit No.2, 11th Cross,
       Malleshwaram,
       Bangalore - 560 003,
       Represented by Directors.
                                                CRL.P.4581/2021
                               2


3.     Sri Prashanth Gangadhar,
       S/o Gangadhar,
       Aged about 32 years,
       Director, M/s. Headwin Exim
       Pvt. Ltd., R/at No.116/2,
       1st Floor, Unit No.2,
       11th Cross, Malleswaram,
       Bangalore - 560 003.        ... RESPONDENTS


       This Criminal Petition is filed under Section 482 Cr.PC,
praying to set aside the order dated 25.03.2019 passed by the
learned Magistrate in C.C.No.8722/2019 on the file of the XV
ACMM, Bengaluru, for the offence under Section 138 of N.I.Act,
and quash the entire proceedings in the said case.

       This petition coming on for Admission, this day, the
Court made the following:

                            ORDER

1. Heard the learned Counsel for the petitioner.

2. Petitioner, who is accused no.3 in C.C.No.8722/2019

pending on the file of XV Addl. Chief Metropolitan

Magistrate, Bengaluru, for the offence punishable under

Section 138 of the Negotiable Instruments Act (for short,

'N.I.Act'), has approached this Court with a prayer to

quash the entire proceedings in the said case as against

her.

CRL.P.4581/2021

3. Brief facts of the case that are relevant for the

purpose of disposal of this case are, respondent

no.1/complainant has filed PCR No.3766/2017 before the

Trial Court as against respondents 2 & 3 herein and also

the petitioner. It is alleged in the complaint that towards

discharge of the legally recoverable dues of accused no.1-

company, of which, accused nos.2 & 3 are Directors, the

cheques in question were issued in favour of the

complainant. On presentation of the said cheques for

realization, they were dishonored. After compliance of the

statutory requirements, the complainant has filed a private

complaint against the company and its Directors for the

offence punishable under Section 138 of the N.I.Act. The

Trial Court after recording the sworn statement of the

complainant, has issued summons to the accused persons

and on receipt of the same, accused no.3 who is one of the

Director of accused no.1-compay has approached this

Court with a prayer to quash the entire proceedings in the

said case as against her.

CRL.P.4581/2021

4. Learned Counsel for the petitioner submits that the

petitioner is only a Director and she has not signed the

cheque in question. He also submits that there are no

averments in the complaint with regard to the role played

by the petitioner in the day-to-day management affairs of

accused no.1-company. He submits that merely for the

reason that the petitioner is a Director, she cannot be

prosecuted for the offence under Section 138 of N.I.Act in

the absence of specific averments with regard to her role in

the management affairs of the company and also with

regard to the transaction in question. He has relied upon

the following judgments of the Hon'ble Supreme Court.

(i) GUNMALA SALES PRIVATE LIMITED VS ANU MEHTA & OTHERS - (2015)1 SCC 103;

(ii) POOJA RAVINDER DEVIDASANI VS STATE OF MAHARASHTRA & ANOTHER - (2014)16 SCC 1;

(iii) S.M.S.PHARMACEUTICALS LTD. VS NEETA BHALLA & ANOTHER - (2005)8 SCC 89.

CRL.P.4581/2021

5. I have carefully considered the arguments advanced

by the learned Counsel for the petitioner and also perused

the material on record.

6. In the complaint, it is specifically averred that the

petitioner herein who is the Director of company had

approached the complainant seeking financial assistance

for business purpose and at the request of all the accused

persons, the complainant had paid a sum of

Rs.15,00,000/- to the accused through cheque. It is also

stated in the complaint that a sum of Rs.6,75,000/- was

paid by the accused persons and the cheque in question

has been issued towards payment of the balance amount.

In the complaint, it is also specifically averred that

accused nos.1 to 3 have executed on-demand promissory

note and consideration receipt acknowledging the loan

from the complainant and the cheque in question has been

issued on behalf of the company signed by accused no.2.

7. During the course of sworn statement of the

complainant, the copies of on-demand promissory note CRL.P.4581/2021

and consideration receipt which have been executed by the

accused persons including the petitioner herein has been

produced and marked before the learned Magistrate.

Therefore, there is sufficient material to show that the

petitioner who is one of the Director of accused no.1-

company had the knowledge of the loan transaction and

she has acknowledged the loan by executing on-demand

promissory note and the consideration receipt in favour of

the complainant.

8. The judgments relied upon by the learned Counsel

for the petitioner, therefore, would not be applicable to the

facts of this case for the simple reason that there are

sufficient material available in the complaint which would

go to show that the petitioner was actively participating in

the day-to-day management affairs of the company and in

addition to the same, she had also executed the on-

demand promissory note and the consideration receipt in

respect of the alleged transaction, wherein the accused

persons have borrowed loan from the complainant. It is

settled principle of law that judgments relied as precedent CRL.P.4581/2021

are required to be taken into consideration only if the said

judgments are applicable to the fact situation of the case.

9. In the case on hand, since there are more than

sufficient material to show that the petitioner who is the

Director of the company had the complete knowledge of

the loan transaction and she also had executed documents

in favour of the complainant acknowledging the loan, the

Trial Court was fully justified in proceeding even against

the petitioner under Section 204 Cr.PC. I, therefore, find

no good reason to interfere in the matter. Accordingly,

petition is dismissed.

Sd/-

JUDGE

KK