Karnataka High Court
Arunkumar S/O Murugeppa ... vs Sri.Ram And Sons on 12 January, 2022
Bench: M.Nagaprasannapresided Bymnpj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100169/2021
C/W.CRIMINAL PETITION NOS.100115 & 100116 OF 2020,
CRIMINAL PETITION NOS.100168 AND 100178 OF 2021
IN CRL.P.NO.100169/2021
BETWEEN
1. SRI ARUNKUMAR S/O.MURIGEPPA KARIBEVIN,
PARTNER OF SRI KARISIDDESHWAR TRADERS,
AGE- 48 YEARS,
OCC-PARTNER OF KARISIDDESHWAR TRADERS,
GENERAL MERCHANTS AND COMMISSION AGENTS,
C BLOCK, A.P.M.C. YARD,
RANEBENNUR, DIST. HAVERI-581115.
2. SRI IRAPPA S/O. SANNAPPA KARIBEVIN,
PARTNER OF SRI. KARISIDDESHWAR TRADERS,
AGE- 51 YEARS,
OCC-PARTNER OF KARISIDDESHWAR TRADERS,
GENERAL MERCHANTS AND COMMISSION AGENTS,
C BLOCK, A.P.M.C. YARD,
RANEBENNUR, DIST. HAVERI-581115.
3. SAVITA W/O.CHANDRASHEKHAR TEMBAD,
PARTNER OF SRI KARISIDDESHWAR TRADERS,
AGE. 41 YEARS,
OCC-PARTNER OF KARISIDDESHWAR TRADERS,
MARUTHI NAGAR, 1ST MAIN,
NEAR DODDMANI HOSPITAL,
2
VISHWABANDHU NILAYA,
RANEBENNUR, DIST. HAVERI-581115.
4. SMT VEENA W/O BASAVARAJ BOLLOLLI,
PARTNER OF SRI KARISIDDESHWAR TRADERS,
AGE. 41 YEARS, OCC. PARTNER OF
SRI KARISIDDESHWAR TRADERS,
PATTANASHETTY ONI,
NEAR SAMANTRI FARM,
RANEBENNUR, DIST. HAVERI-581115
...PETITIONERS
(BY SRI M.H.PATIL, AND
SRI HARSHAWARDHANA M.PATIL, ADVOCATES)
AND :
1. SRI SHARANABASAVESHWARA TRADING CO.
R/BY PARTNERS SRI. LOKAPPA
S/O. NAGAPPA ANTARAVALLI,
AND AKKAMMA W/O.LOKAPPA ANTARVALLI,
GENERAL MERCHANTS, AND COMMISSION AGENTS.
R/O. APMC YARD, TQ. RANEBENNUR,
DIST. HAVERI.-581115.
2. SRI LOKAPPA S/O NAGAPPA ANTARVALLI,
AGED 53 YEARS, OCC. AGRICULTURIST
AND 75 % PARTNERS OF
SRI. SHARANABASAVESHWARA TRADING CO.
R/O. APMC YARD, TQ. RANEBENNUR,
DIST. HAVERI-581115.
3. SMT AKKAMMA W/O.LOKAPPA ANTARVALLI,
AGED 53 YEARS, OCC- 25 % PARTNER OF
SRI SHARANABASAVESHWARA TRADING CO.,
GENERAL MERCHANTS AND COMMISSION AGENTS,
R/O. APMC YARD, TQ. RANEBENNUR,
DIST. HAVERI-581115.
.....RESPONDENTS
(BY SRI B.V.SOMAPUR, ADV. FOR RESPONDENT NO.1)
(NOTICE TO RESPONDENT NOS.2 AND 3-SERVED)
3
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE REGISTRATION OF THE C.C.NO.
380/2020 FOR THE OFFENCE PUNISHABLE U/SEC.138 OF
N.I.ACT, PENDING ON THE FILE OF II ADDL. SENIOR CIVIL
JUDGE AND JMFC, RANEBENNUR IN SO FAR AS THE
PETITIONERS IS CONCERNED.
IN CRL.P.NO.100115/2020
BETWEEN
1. ARUNKUMAR S/O. MURUGEPPA KARIBEVIN,
AGE- 47 YEARS, OCC- BUSINESS,
R/O. OPP. AMBABHAVANI TEMPLE,
DODDAPETE, RANEBENNUR-581115.
2. IRAPPA S/O. SANNAPPA KARIBEVIN,
AGE- 50 YEARS, OCC- BUSINESS,
R/O OPP. AMBABHAVANI TEMPLE,
DODDAPETE, RANEBENNUR-581115.
3. SAVITA W/O. CHANDRASHEKHAR TEMBAD,
AGE- 40 YEARS, OCC- BUSINESS,
R/O- C/O C. R. TEMBAD,
VISHWABANDHU NILAYA,
MARUTI NAGAR, RANEBENNUR-581115.
4. VEENA W/O. BASAVARAJ BALLOLLI,
AGE- 39 YEARS, OCC- BUSINESS,
R/O- ANISHETTAR ONI, NEAR SAMANTRI HOUSE,
BEHIND BASAWESHWAR TEMPLE,
DODDAPETE, RANEBENNUR-581115.
...PETITIONERS
(BY SRI M.H.PATIL, AND
SRI HARSHAWARDHANA M.PATIL, ADVOCATES)
4
AND :
SRI GURUNATH TRADERS,
A.P.M.C. RANEBENNUR,
R/BY SRI. UDAYKUMAR
S/O. DHARMAPPA KAMBLI,
AGE- 50 YEARS, OCC- BUSINESS,
R/O. KANAKADAS NAGAR, KAMBLI GALLI,
RANEBENNUR, DIST- HAVERI-581115.
...RESPONDENT
(BY SRI B.V.SOMAPUR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE REGISTRATION DATED 14.08.2019 OF
THE C.C. NO.1027/2019 FOR THE OFFENCE PUNISHABLE
U/SEC.138 OF N.I.ACT PENDING ON THE FILE OF II ADDL. SR.
CIVIL JUDGE AND JMFC, RANEBENNUR IN SO FAR AS THE
PETITIONERS ARE CONCERNED.
IN CRL.P.NO.100116/2020,
BETWEEN
1. ARUNKUMAR S/O.MURUGEPPA KARIBEVIN,
AGE- 47 YEARS, OCC- BUSINESS,
R/O- BELLADAVOOR ONI NEAR,
OPP- AMBABHAVANI TEMPLE,
DODDAPETE, RANEBENNUR,
DIST- HAVERI-581115.
2. IRAPPA S/O SANNAPPA KARIBEVIN,
AGE- 50 YEARS, OCC- BUSINESS,
R/O- BELLADAVOOR ONI NEAR,
OPP- AMBABHAVANI TEMPLE,
DODDAPETE, RANEBENNUR,
DIST- HAVERI-581115.
5
3. SAVITA W/O CHANDRASHEKHAR TEMBAD,
AGE- 40 YEARS, OCC- BUSINESS,
NOW AT R/O- C/O C.R.TEMBAD,
VISHWABANDHU NILAYA, MARUTI NAGAR,
RANEBENNUR, DIST- HAVERI-581115.
4. VEENA W/O BASAVARAJ BALLOLLI
AGE- 39 YEARS, OCC- BUSINESS,
NOW AT R/O- ANISHETTAR ONI,
NEAR SAMANTRI HOUSE,
BEHIND BASAWESHWAR TEMPLE,
DODDAPETE, RANEBENNUR,
DIST- HAVERI-581115.
...PETITIONERS
(BY SRI M.H.PATIL, AND
SRI HARSHAWARDHANA M.PATIL, ADVOCATES)
AND
SRI.RAM AND SONS,
R/BY ITS MANAGING PARTNER,
SRI.GANESH S/O RAMAPPA JADAMALI,
AGE- 58 YEARS, OCC- BUSINESS,
R/O- RAJA-RAJESHWARI NAGAR,
RANEBENNUR, DIST- HAVERI-581115.
...RESPONDENT
(BY SRI B.V.SOMAPUR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., PRAYING TO QUASH THE REGISTRATION 07.08.2019
OF THE C.C. NO.803/2019 FOR THE OFFENCE PUNISHABLE
U/SEC.138 OF N.I. ACT PENDING ON THE FILE OF II ADDL.
SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR IN SO FAR AS
THE PETITIONERS ARE CONCERNED.
6
IN CRL.P.NO.100168/2021
BETWEEN
1. SRI ARUNKUMAR S/O MURIGEPPA KARIBEVIN,
AGE. 42 YEARS, OCC. AGENT,
R/O. OPP. AMBABAVANI TEMPLE,
DODDAPET ROAD, DODDPET,
RANEBENNUR, DIST. HAVERI-581115.
2. SRI IRAPPA S/O. SANNAPPA KARIBEVIN
AGE. 52 YEARS,
R/O. OPP. AMBABAVANI TEMPLE,
DODDAPET ROAD, DODDPET,
RANEBENNUR, DIST. HAVERI-581115.
3. SAVITA W/O CHANDRASHEKHAR TEMBAD,
AGE. 42 YEARS, OCC. BUSINESS,
R/O. C/O. C. R. TEMBAD,
'VISHWABANDHU NILAYA',
MARUTHI NAGAR, RANEBENNUR-581 115.
4. SMT VEENA W/O. BASAVARAJ BALLOLLI,
AGE. 41 YEARS, OCC. AGENT,
R/O. C/O. BASAVARAJ BOLLOLLI,
BEHIND BASAVESHWARA TEMPLE,
ANNISHETTAR ONI, NEAR SAMANTRI HOME,
DODDAPET, RANEBENNUR,
DIST. HAVERI-581115.
...PETITIONERS
(BY SRI M.H.PATIL, AND
SRI HARSHAWARDHANA M.PATIL, ADVOCATES)
AND :
SHRI SIDDESHWAR COMMISSION AGENCY AND
GENERAL MERCHANTS, RANEBENNUR,
R/BY HANUMANTHAPPA S/O BUDIGOUDA BANAKAR,
AGE. 56 YEARS, OCC. BUSINESS,
R/O. 7TH CROSS,
VAGISH NAGAR,
7
TQ. RANEBENNUR,
DIST. HAVERI-581115.
...RESPONDENT
(BY SRI SHRIKANT S.PATIL AND
SRI ROHIT S.PATIL, ADVOCATES)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE REGISTRATION OF THE C.C.NO.
1187/2019 FOR THE OFFENCE PUNISHABLE U/SEC.138 OF N.I.
ACT, PENDING ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE
AND JMFC, RANEBENNUR IN SO FAR AS THE PETITIONERS ARE
CONCERNED.
IN CRL.P.NO.100178/2021
BETWEEN
1. SRI ARUNKUMAR S/O. MURIGEPPA KARIBEVIN,
AGE. 42 YEARS, OCC-COMMISSION AND
GENERAL MERCHANTS AGENT,
R/O. OPP. AMBABAVANI TEMPLE,
DODDAPET ROAD, DODDPET,
RANEBENNUR, DIST. HAVERI-581115.
2. SRI IRAPPA S/O. SANNAPPA KARIBEVIN
AGE. 51 YEARS, OCC. GENERAL MERCHANTS AND
COMMISSION AGENTS,
R/O. OPP. AMBABAVANI TEMPLE,
DODDAPET ROAD, DODDPET,
RANEBENNUR, DIST. HAVERI-581115.
3. SAVITA W/O CHANDRASHEKHAR TEMBAD,
AGE. 41 YEARS, OCC. GENERAL MERCHANTS AND
COMMISSION AGENTS,
R/O. C/O. C. R. TEMBAD,
'VISHWABANDHU NILAYA',
8
1ST MAIN ROAD, MARUTHI NAGAR,
RANEBENNUR, DIST. HAVERI-581115.
4. SMT VEENA W/O. BASAVARAJ BOLLOLLI,
AGE. 41 YEARS, OCC. GENERAL MERCHANTS AND
COMMISSION AGENTS,
R/O. C/O. BASAVARAJ BOLLOLLI,
BEHIND BASAVESHWARA TEMPLE,
ANNISHETTAR ONI, NEAR SAMANTRI HOME,
RANEBENNUR, DIST. HAVERI-581115.
...PETITIONERS
(BY SRI M.H.PATIL, AND
SRI HARSHAWARDHANA M.PATIL, ADVOCATES)
AND :
MYLARESHWARA TRADERS, RANEBENNUR,
R/BY JAMALREDDY S/O GUDDAPPA AJAREDDY,
AGE. 82 YEARS, OCC. BUSINESS,
R/O. MUSTUR, TQ. RANEBENNUR,
DIST. HAVERI-581115.
..RESPONDENT
(BY SRI DINESH M.KULKARNI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE REGISTRATION OF THE
C.C.NO.79/2020 FOR THE OFFENCE PUNISHABLE U/SEC.138 OF
NI ACT, PENDING ON THE FILE OF II ADDL. SENIOR CIVIL
JUDGE AND JMFC, RANEBENNUR IN SO FAR AS THE
PETITIONERS ARE CONCERNED.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
9
ORDER
All these petitions are between the same parties filed
for different transactions for offences punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short, 'the NI Act').
2. Brief facts leading to filing of the present
petitions as borne out from the pleadings are as follows :
The complainant has the business of general
merchant and also a commission agent. Accused in all
these cases are either the signatory or partners of Sri
Karisiddeshwar Traders. Transactions between the two led
to the accused giving a cheque drawn on Union Bank of
India for Rs.10,00,000/- which was encashed by the
accused Sri Karisiddeshwar Traders. It is the claim of the
complainant that in furtherance of the aforesaid amount
that was given to the respondent. The respondent had
issued a post dated cheque dated 31.08.2019 for
Rs.10,00,000/- payable to the first complainant. This
having been dishonored for want of sufficient funds led to
registration of a complaint against the respondent-accused.
The trial Court having directed investigation a charge sheet
is filed after investigation and proceedings are pending in
different criminal cases. All of these proceedings are called
in question in these petitions.
3. The solitary submission made by the learned
counsel for the petitioner is the accused No.2 who is the
authorized signatory is the culprit and not the other
petitioners as they had no control over the affairs of the
firm and had no role to play in issuance of the cheque. It is
his further submission that if at all the complainant had to
proceed against it was the accused No.2 alone and not the
other petitioners.
4. On the other hand the learned counsel
representing the respondent would justify the registration
of the complaint on the ground that the petitioners being
the partners in the firm were well aware of the transaction
and had infact authorized such transaction. He would seek
the dismissal of the criminal petitions.
5. I have given my anxious consideration to the
submissions made by the respective learned counsel and I
have perused the material on record.
6. The issue with regard to whether the petitioners
who were partners in the firm can be proceeded against as
they are bound to be privy to the transaction of accused
No.2 need not detain this Court for long or delve deep into
the matter as the issue stands covered by the latest
Judgment of the Apex Court in the case of Ashutosh Ashok
Parasrampuriya and Another v. M/s.Gharrkul Industries
Pvt. Ltd. and Others, reported in AIR 2021 SC 4898,
wherein the Hon'ble Apex Court holds as follows :
"21. After so stating, the Court analysed
Section 141 of the NI Act and after referring to
certain other authorities answered a reference which
reads as follows :-
19(a) It is necessary to specifically aver in a
complaint under Section 141 that at the time the
offence was committed, the person accused was in
charge of, and responsible for the conduct of
business of the company. This averment is an
essential requirement of Section 141 and has to be
made in a complaint. Without this averment being
made in a complaint, the requirements of Section
141 cannot be said to be satisfied.
(b) The answer to the question posed in
sub-para (b) has to be in the negative. Merely being
a director of a company is not sufficient to make the
person liable under Section 141 of the Act. A director
in a company cannot be deemed to be in charge of
and responsible to the company for the conduct of its
business. The requirement of Section 141 is that the
person sought to be made liable should be in charge
of and responsible for the conduct of the business of
the company at the relevant time. This has to be
averred As a fact as there is no deemed liability of a
director in such cases.
(c) The answer to Question (c) has to be in the
affirmative. The question notes that the managing
director or joint managing director would be
admittedly in charge of the company and responsible
to the company for the conduct of its business. When
that is so, holders of such positions in a company
become liable under Section 141 of the Act. By virtue
of the office they hold as managing director or joint
managing director, these persons are in charge of
and responsible for the conduct of business of the
company. Therefore, they get covered under Section
141. So far as the signatory of a cheque which
is dishonoured is concerned, he is clearly responsible
for the incriminating act and will be covered under
sub- section (2) of Section 141."
22. The same principle has been reiterated in
S.K. Alagh Vs. State of Uttar Pradesh & Others 5;
Maharashtra State Electricity Distribution Co. Ltd. &
Another Vs. Datar Switchgear Ltd. And Others6 and
GHCL Employees Stock Option Trust Vs. India
Infoline Limited.
23. In the light of the ratio in S.M.S.
Pharmaceuticals Ltd. (supra) and later judgments of
which a reference has been made what is to be
looked into is whether in the complaint, in addition to
5 2008 (5) SCC 662 6 2010 (10) SCC 479 72013 (4)
SCC 505 Asserting that the appellants are the
Directors of the Company and they are incharge of
and responsible to the Company for the conduct of
the business of the Company and if statutory
compliance of Section 141 of the NI Act has been
made, it may not open for the High Court to interfere
under Section 482 Cr.P.C. unless it comes across
some unimpeachable, incontrovertible evidence
which is beyond suspicion or doubt or totally
acceptable circumstances which may clearly indicate
that the Director could not have been concerned with
the issuance of cheques and asking him to stand the
trial would be abuse of process of Court. Despite the
presence of basic averment, it may come to a
conclusion that no case is made out against the
particular Director for which there could be various
reasons.
26. This averment assumes importance
because it is the basic and essential averment which
persuades the Magistrate to issue process against
the Director. That is why this Court in S.M.S.
Pharmaceuticals Ltd. (supra) observed that the
question of requirement of averments in a complaint
has to be considered on the basis of provisions
contained in Sections 138 and 141 of the NI Act read
in the light of the powers of a Magistrate referred to
in Sections 200 to 204 Cr.P.C. which recognise the
Magistrate's discretion to take action in accordance
with law. Thus, it is imperative that if this basic
averment is missing, the Magistrate is legally
justified in not issuing process."
7. In the light of the law laid down by the Hon'ble
Apex Court in the afore extracted Judgment the submission
of the learned counsel for the petitioner in all these
petitions cannot be accepted as it is a matter of evidence in
the trial as to whether the petitioners had any role to play
either active of passive in the entire transaction. For the
aforesaid reasons and in the light of the law laid down by
the Hon'ble Apex Court supra all these criminal petitions
are lack merit and are dismissed.
SD
Ckk JUDGE
