Telangana High Court
Prithviraj Ramrakhyani vs The State Of Telangana on 23 September, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION Nos.7760 & 7777 of 2024
COMMON ORDER:
Since the issue involved in both the criminal petitions
is one and the same, they are being heard and disposed of
together by way of this common order.
2. These Criminal Petitions are filed under Section 528 of
Bharatiya Nagarik Suraksha Sanhita (for short 'BNSS') to
quash the proceedings against the petitioners/accused
Nos.5 and 6 in STC.NI.Nos.2544 & 2543 of 2021
respectively, on the file of the learned I Metropolitan
Magistrate (Municipal Court), Hyderabad, registered for the
offences punishable under Section 138 read with 142 of the
Negotiable Instruments Act, 1881 (for short 'the Act').
3. The brief facts of the cases are that respondent
No.2/de facto complainant filed private complaint under
Section 200 Cr.P.C., before the learned I Metropolitan
Magistrate (Municipal Court), Hyderabad, stating that
accused No.1 is the registered partnership firm and accused
Nos.2 to 6 are the Managing partners of accused No.1 firm.
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The accused No.1-company, represented by accused Nos.2
to 6, offered to sell the subject property to respondent No.2
for a total sale consideration of Rs.27,00,000/-, out of which
respondent No.2 paid Rs.7,00,000/- on 04.01.2018 and on
the same day, accused No.1 allotted the subject premises
and issued confirmation letter to respondent No.2 and also
agreed to pay Rs.13,00,000/- within 10 days from
04.01.2018 and thereafter, MOU will be entered by
mentioning the terms and conditions and respondent No.2
agreed to pay remaining Rs.7,00,000/- to accused No.1
within 45 days thereafter.
4. It is further stated that respondent No.2 paid an
amount of Rs.20,00,000/- on 02.02.2018, 03.02.2018 and
09.03.2018. Therefore, respondent No.2 paid total sale
consideration of Rs.27,00,000/-. After ten days of the entire
payment, respondent No.2 approached the accused and
requested to execute the sale deed in her favour, but
accused Nos.2 to 6 being the Managing Partners of accused
No.1-Company, with malicious intention, dragged on the
matter on one pretext or the other. It is further stated that
after several requests also, the accused are intentionally
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avoiding for execution of registration of sale deed in favour
of respondent No.2. On 19.03.2021, all the accused and
respondent No.2 settled the matter and agreed to refund the
amount along with interest of Rs.6,00,000/- and executed a
mutual confirmation letter. Further, accused No.2 issued
10 cheques i.e., cheque bearing Nos.152563, 152554,
152555, 152556, 152557, 152558, 152559, 152660 and
152561 for an amount of Rs.3,00,000/- and cheque bearing
No.152562 for an amount of Rs.6,00,000/- .
5. It is further stated that out of ten cheques, five
cheques were honoured and remaining five cheques were
dishonoured with an endorsement "Insufficient Funds", and
that the same was informed to the accused. In spite of
several requests, the accused did not pay the due amount
and dragged on the matter on one pretext or the other.
Thereafter, respondent No.2 sent a legal notice dated
22.10.2021 to the accused to pay the cheque amount within
15 days from the said legal notice and the accused gave
reply to said notice on 10.11.2021 admitting the legal
enforceable debt and liability and gave an undertaking that
they will pay the amount within 15 days from the date of
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Crl.P.Nos.7760 & 7777 of 2024
reply notice, but they failed to pay the amount. Basing on
the said complaint, the learned I Metropolitan Magistrate
(Municipal Court), Hyderabad, took cognizance of the
offence and registered the cases for the offence punishable
under Section 138 read with 142 of the Act.
6. Heard Sri Bethi Ram Mohan, learned counsel
appearing on behalf of the petitioners as well as Sri E.
Ganesh, learned Assistant Public Prosecutor appearing on
behalf of respondent No.1-State and Sri A. Suryanarayana,
learned counsel appearing on behalf of respondent No.2 in
both cases.
7. Learned counsel for the petitioners submitted that the
trial Court erred in taking cognizance against the petitioners
as there is no prima facie case made out. He further
submitted that the transactions alleged by respondent No.2
are in the year 2021, but the petitioners retired from the
partnership firm in the year 2018 and they are no way
concerned with the day to day affairs of the said company.
Therefore, issuance of notice to the petitioners is
misconceived as they are not partners in accused No.1-
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Company. Hence, he prayed the Court to quash the
proceedings against the petitioners.
8. In support of his submissions, learned counsel for the
petitioners relied upon the judgment of the Hon'ble Supreme
Court in S.P. Mani and Mohan Dairy v. Dr. Snehalatha
Elangovan, wherein it is held as follows:
"But, if any Director or Partner wants the
process to be quashed by filing a petition under
Section 482 of the Code on the ground that
only a bald averment is made in the complaint
and that he is really not concerned with the
issuance of the cheque, he must in order to
persuade the High Court to quash the process
either furnish some sterling incontrovertible
material or acceptable circumstances to
substantiate his contention."
9. On the other hand, learned Assistant Public
Prosecutor and learned counsel appearing on behalf of
respondent No.2 vehemently opposed the submissions made
by the learned counsel for the petitioners stating that the
petitioners are sons of accused Nos.2 and 3. The retirement
of the petitioners from accused No.1-Company was not
reflected in the Registrars of Partnership Firm Portal, as
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such, they are also liable for the punishment. Therefore, he
prayed the Court to dismiss the criminal petitions.
10. In the light of the submissions made by both the
learned counsel and a perusal of the material available on
record, admittedly, accused Nos.2 to 6 are the family
members and they are the partners of accused No.1-
Company. The main contention of the learned counsel for
the petitioners is that the transactions are of the year 2021,
but the petitioners retired from the company in the year
2018, as such, the offence under Section 138 read with 142
of the Act does not attract to them.
11. As seen from the retirement deed dated 27.02.2018,
the petitioners retired from accused No.1-Company as
partners voluntarily on 01.03.2018 and accused Nos.2 to 4
have also given undertaking that they have no objection for
the same. Therefore, the petitioners are not the partners
with effect from 01.03.2018. However, as the transactions
are of the year 2021, the reply notice does not reflect the
alleged retirement deed. That part, the reply notice was
given by all the accused including the petitioners, wherein,
they did not aver anything about the retirement deed.
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Further, when they were not taken the plea of retirement in
the reply notice and it is not reflected in the portal, at this
stage, it cannot be concluded that the petitioners are not the
partners on the date of issuance of cheques, as such, the
same requires full-fledged trial.
12. Accordingly, these criminal petitions are dismissed.
Miscellaneous applications, if any pending, shall also
stand closed.
_____________
K. SUJANA, J
Date: 23.09.2024
SAI
