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2017 DIGILAW 473 (KAR)

Sushma Anandu v. S. K. Enterprises, Mumbai

2017-02-10

JOHN MICHAEL CUNHA

body2017
ORDER : JOHN MICHAEL CUNHA, J. 1. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 2. These petitions are filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C., seeking to quash the proceedings on the file of Metropolitan Magistrate, 58th Court, Bandra, Mumbai in C.C.Nos.2503/SS/2013, 2501/SS/2013 and 2502/SS/2013. 3. The respondent herein filed these private complaints before the Metropolitan Magistrate, 58th Court, Bandra, Mumbai numbered as C.C.Nos.2503/SS/2013, 2501/SS/2013 and 2502/SS/2013 respectively. In the said complaints petitioner is arraigned as accused No. 2 and her husband Deepak Krishnappa is arraigned as accused No.1. It is alleged in the complaints that accused Nos. 1 and 2 are engaged in the business of real estate development in India. Accused No. 1 has been instrumental in all the transactions with the complainant. Accused No. 1 through his firm M/s. Metrocorp, has entered into a lease agreement dated 25.03.2008 for leasing the residential villa bearing No. 18 as per the plan sanctioned. In connection with the said transaction, it is stated that accused No.1 issued nine cheques, dated 12.06.2013. The said cheques, when presented for encashment, came to be returned as 'account closed' Hence, the respondent sought action against accused Nos.1 and 2 under Section 138 read with Section 142 of Negotiable Instruments Act, 1881. 4. The contention of the petitioner is that the cheques in question were not issued by her. No notice has been issued to her by the respondent demanding payment thereof. It is the further submission of the petitioner that even though in the complaint it is stated that she is a partner of M/s. Metrocorp, she ceased to be a partner of the said firm with effect from 26.04.2007 as evidenced by the extract of the Register maintained under Section 59 of Indian Partnership Act, 1932. There are no averments whatsoever against the petitioner alleging commission of offences punishable under Section 138 read with Section 143 of the Negotiable Instruments Act, 1881; therefore the initiation of proceedings against the petitioner is a sheer abuse of the process of court and hence the petitioner has sought to quash the impugned proceedings. 5. The respondent has not filed any objections disputing the averments made in the memorandum of writ petition. In the course of the argument, the learned counsel for the respondent has raised two fold contentions. 5. The respondent has not filed any objections disputing the averments made in the memorandum of writ petition. In the course of the argument, the learned counsel for the respondent has raised two fold contentions. Firstly, it is contended that the private complaint is filed in the Court of Metropolitan Magistrate, 58th Court, Bandra, Mumbai, therefore, this court has no jurisdiction to entertain the petition either under Article 226 or under 482 of the Cr.P.C. In support of this contention, the learned counsel has relied on the decision rendered by the Supreme Court of India in the case of Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors., reported in AIR 2006 Supreme Court 1288. Secondly, the petitioner herein being a partner of M/s. Metrocorp and the lease agreement having been entered into by the said firm, the petitioner is also liable to answer the claim made by the respondent and consequently, she is liable to be sued for dishonor of the cheques in question. 6. Refuting the above argument, learned counsel for the petitioner would submit that the very initiation of the proceedings in Mumbai Court itself is illegal and malafide as the averments made in the private complaint show that entire cause of action is has arisen within the jurisdiction of Bangalore Court. The learned counsel points out that in the complaint it is alleged that lease agreement was entered into at Bangalore, the cheques were also issued in Bangalore and are payable at Bangalore within the jurisdiction of this court. Yet, only to harass the petitioner, the respondent has resorted to file the case in Mumbai even though the petitioner is no way connected or related to the cheque transaction. In support of the maintainability of the petition before this Court, the learned counsel has referred to the law laid down in the case of Kusum Ingots & Alloys Ltd. v. Union of India and another (2004) 6 Supreme Court Cases 254 : ( AIR 2004 SC 2321 ) and has emphasized that even if part of the cause of action has taken place within the jurisdiction of this Court, the Court will have jurisdiction in the matter. 7. I have bestowed my careful thought to the contention urged by the parties. 7. I have bestowed my careful thought to the contention urged by the parties. Coming to the jurisdiction to maintain the petition, there can be no manner of doubt that the facts stated in the complaint as well as the documents produced along with the complaint, undoubtedly point out that the alleged transaction has taken place within the jurisdiction of the Bangalore Court. The cheques in question have been drawn on Vijaya Bank, Jalahalli, Bangalore. The respondent has not disputed the fact that the petitioner is the resident of Bangalore. More importantly, the un-controverted allegations do not make out any offences by the petitioner. There is nothing on record to show that the petitioner has committed any offence within the jurisdiction of Mumbai Court. Under the said circumstances, the contention urged by the petitioner that this Court has no jurisdiction to entertain the petition is contrary to Article 226(2) of the Constitution of India and therefore cannot be sustained. 8. Coming to the merits of the case, it is relevant to note that the criminal jurisdiction is invoked by the respondent on the specific allegation that the cheques issued by accused No.1 have been dishonoured. There are no averments whatsoever in the complaints that the petitioner herein was instrumental either in the issuance of the cheques or in maintaining the account in Bangalore. Though it is alleged that accused Nos. 1 and 2 are engaged in the business of real estate in India, the documents produced by the petitioner undoubtedly point out that the petitioner herein has ceased to be a partner of the firm with effect from 26/04/2007. The respondent has not disputed this document. It is also not in dispute that notice of dishonour of the cheque was issued only to accused No.1 and not to the present petitioner. Under the said circumstances, there is absolutely no cause of action for the respondent to sue the petitioner as co-accused merely because the petitioner is the wife of accused No.1. The action of the respondent tantamount to abuse of the process of court calculated to compel accused No.1 to concede to his demands. Therefore, this is a fit case wherein the jurisdiction under Section 482 of Cr.P.C. and Article 226 of Constitution requires to be exercised to prevent further abuse of the process of court and to secure the ends of justice. 9. Petition is allowed. Therefore, this is a fit case wherein the jurisdiction under Section 482 of Cr.P.C. and Article 226 of Constitution requires to be exercised to prevent further abuse of the process of court and to secure the ends of justice. 9. Petition is allowed. Further proceedings on the file of the Metropolitan Magistrate, 58th Court, Bandra, Mumbai, insofar as the petitioner is concerned, are quashed.