Vani Shamachar vs Dr B K Anupama Sundar
2021 Latest Caselaw 1678 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
        DATED THIS THE 2ND DAY OF MARCH, 2021
                         BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                 CRL.P.No.101328/2017

BETWEEN:

VANI SHAMACHAR,
AGED ABOUT 42 YEARS,
R/O: NO.349, 11B CROSS,
BANASHANKARI 3RD STAGE,
GIRINAGAR, BENGALURU-560085.               ...PETITIONER

(BY SRI GANAPATHI M.BHAT, ADVOCATE)

AND:

DR B K ANUPAMA SUNDAR,
W/O DR.B.K. SUNDAR,
AGE: MAJOR,
R/O: 15/18, 1ST CROSS,
GANDHI NAGAR, BALLARI,
TQ and DIST: BALLARI.                    RESPONDENT

(BY SRI GOPALKRISHNA R. KOLLI AND
    SRI PRASAD R.SIDDANTHI, ADV.)

      THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING TO ALLOW THE CRIMINAL PETITION AND TO QUASH
PRIVATE COMPLAINT AND TAKING COGNIZANCE AND
ISSUANCE    OF    SUMMONS     AGAINST   THE   PETITIONER
HEREIN/ARRAYED AS ACCUSED NO. 4 OR 5 BEFORE TRIAL
COURT AND SUBSEQUENT PROCEEDINGS PENDING ON THE
FILE OF THE COURT OF THE PRL.CIVIL JUDGE AND JMFC,
COURT, BELLARY IN C.C.NO. 1504 OF 2016 (P.C.NO. 223 OF
2015) FOR AN OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT, 1881.
                               2




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

                            ORDER

This petition is filed with a prayer to quash

the complaint and taking of cognizance and

issuance of summons against the petitioner

herein, who is arrayed as an accused in

C.C.No.1504/2016 on the file of the Prl. Civil

Judge and JMFC, Ballari, for an offence punishable

under Section 138 of the Negotiable Instruments

Act, 1881, (for short 'the Act').

2. Heard Shri Ganapathi M.Bhat, learned

counsel for the petitioner and Shri Gopalkrishna

R.Kolli, learned counsel appearing for the

respondent.

3. Respondent filed a private complaint

alleging that accused No.1 is a private limited

Company and accused Nos.2 and 4 are the

Directors of accused No.1. For the development of

their business and on behalf of accused No.1, they

requested a hand loan from the complainant in a

sum of Rs.15,50,000/-. The said hand loan was

advanced and paid to accused No.2, for and on

behalf of accused No.1, through complainant's

HDFC Bank account to the Axis Bank account

maintained by the Company at Bengaluru branch.

The sum was transferred on 28.10.2013. The

accused persons promised that the said amount

would be repaid within 1½ years. However, when

the complainant demanded the said amount from

accused No.1, a cheque bearing No.868475 dated

17.04.2015 pertaining to Punjab National Bank,

Hudson Circle branch, Bengaluru, was handed over

to the complainant and when the said cheque was

presented through his banker HDFC Bank, Ballari,

the same was dishonoured on 17.04.2015 with a

shara "Exceeds Arrangement". Thereafter, the

complainant got issued a notice to all the accused

on 30.04.2015. The notices sent under the

Registered Post Acknowledgement Due was served

on accused Nos.1, 2 and 4 and even after receipt

of the demand legal notice, they failed to give any

reply nor paid the cheque amount. As such, they

committed an offence punishable under Section

138 of the Act.

4. The petitioner shown as accused No.4

and 5 is stated to be one of the Directors of the

accused No.1-Company. Accused Nos.2 and 3 and

accused Nos.4 and 5 are one and the same but

they are arraigned as accused by showing different

addresses.

5. Learned counsel for the petitioner has

placed reliance on a judgment of the Hon'ble

Supreme Court in the case of

S.M.S.PHARMACEUTICAL LTD., VS. NEETA

BHALLA reported in SCC 2007 (4) 70 and

contended that a Director of a Company shall not

automatically be liable for commission of an

offence on behalf of a Company. He submits that

there are no averments in the complaint to show

that the petitioner who is sought to be proceeded

against on the premise of his being vicariously

liable for commission of an offence by the

Company was incharge and responsible to the

Company for the conduct of its business. He

contends that the petitioner is falsely implicated

on the ground that she is the wife of accused

No.2, who according to the complainant, issued

the cheque being in the position of Managing

Director. He submits that the petitioner is not

involved in day to day activities or business of the

Company.

6. Learned counsel for the respondent has

fairly admitted that the petitioner is only a

Director and there is no averments in the

complaint that she is involved in day to day

activities or business of the Company.

7. The complaint does not disclose any

averments which shows that the petitioner was

incharge of the conduct of the business of the

Company except stating that she was one of the

Directors of the Company. In the judgment cited

supra, the Hon'ble Apex Court has held that

Section 141 of the Act does not say that a Director

of a Company shall automatically be vicariously

liable for commission of an offence on behalf of

the Company. What is necessary is that sufficient

averments should be made to show that the

person who is sought to be proceeded against on

the premise of his being vicariously liable for

commission of an offence by the Company, must

be incharge and shall also be responsible to the

Company for the conduct of its business.

8. On a plain reading of the averments

made in the complaint, this Court is satisfied that

the statutory requirements as contemplated under

Section 141 of the Act are not fulfilled or complied

with. Though, it is not necessary for the

complainant to specifically reproduce the wordings

of the Section but what is required is a clear

statement of the fact so as to enable a Court to

arrive at a prima facie opinion that the accused is

vicariously liable. There is no averment in the

complaint to show as to how and in what manner

the petitioner was responsible for the conduct of

the business of the Company or otherwise

responsible for its functioning. Admittedly, it is

not the petitioner herein who has issued the

cheque. Hence, for the foregoing reasons, this

petition deserves to be allowed.

9. Accordingly, the following:

ORDER

i) Petition is allowed,

ii) The complaint and taking of cognizance

by the Court of Prl. Civil Judge (Jr. Dn.)

and JMFC, Ballari, in C.C.No.1504/2016

(P.C.No.223/2015) against the

petitioner who is shown as accused

No.4/5 is hereby quashed,

iii) Learned Magistrate shall expedite the

proceedings in respect of other accused

persons.

Pending IA-1/2019 is disposed of.

(Sd/-) JUDGE

Jm/-