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2019 DIGILAW 1116 (KAR)

Sanjay Raj, Executive Director v. Pradeep Nagaraj

2019-06-06

ALOK ARADHE

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JUDGMENT : Alok Aradhe, J. 1. Sri.G.R.Sreenivas, learned counsel for the petitioner. Sri.Harish N.R., learned counsel for the respondent. The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally. 2. In this petition under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the 'Code' for short), the petitioner inter alia seeks quashment of further proceedings against the petitioner in C.C.No.19574/2018 before the XXII A.C.M.M., Bengaluru for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. The facts giving rise to filing of the petition briefly stated are that the complainant in his complaint has stated that accused No.1 is a Company registered under the provisions of the Companies Act, 1956, which is engaged in the business of development of the properties and construction. It is further averred that accused No.2 is the Managing Director and accused Nos.3 to 6 are Directors of the Company and that the cheque, which was issued on behalf of the Company was dishonoured. Thereupon, a complaint was filed. The petitioner was arrayed as accused No.7 in the aforesaid complaint. 4. Learned counsel for the petitioner while inviting the attention of this Court to Section 141 of the Negotiable Instruments Act, 1881 and while taking this Court through the complaint filed by respondent under Section 200 of the Code has submitted that the aforesaid complaint even does not state that the petitioner is a Director of the Company. In the complaint, it is also not been stated that the petitioner, at any point of time, was responsible for the conduct of the business of the Company. Therefore, the continuation of the proceedings against the petitioner amounts to abuse of the process of law. 5. On the other hand, learned counsel for the respondent has supported the order passed by the learned Magistrate. 6. I have considered the submissions made by learned counsel for the parties and have perused the records. 7. In paragraph No.4 of the complaint, the following statement has been made: "4. That the Complainant respectfully submit that, the Accused No1 is a Company incorporated under the provisions of Companies Act 1956 and interalia engaged in the business Property Development and Construction. That Accused No. 2 is the Managing Director and Accused No. 3 to 6 are Directors of Accused No.1 Company. That the Complainant respectfully submit that, the Accused No1 is a Company incorporated under the provisions of Companies Act 1956 and interalia engaged in the business Property Development and Construction. That Accused No. 2 is the Managing Director and Accused No. 3 to 6 are Directors of Accused No.1 Company. That the Accused persons is developing a residential apartment project names as 'Presidential Tower' being constructed in property bearing Survey No.90/1, 90/2, 90/3, 91, 93, 94/1, 94/3 and 95 situated at Yeshwanthpur Village, Yeshwanthpur Hobli, Bangalore." 8. From perusal of the entire complaint, it is evident that in the complaint it has no where been stated that the petitioner is even a Director of the Company and there is no compliance with the provisions of Section 141 of the Negotiable Instrument Act. The complaint filed by the respondent does not disclose the commission of any offence by the petitioner. 9. It is well settled law that once First Information Report is registered, the accused can always approach this Court by filing a petition under Section 482 of the Code of Criminal Procedure. A Two Judge Bench of this Court in the case of 'STATE OF HARYANA AND ORS VS CH. BHAJAN LAL AND ORS, (1992) AIR SC 604 after taking note of the decisions in the cases of 'HAZARI LAL GUPTA VS RAMESHWAR PRASHAD & ANR, (1972) 1 SCC 452 ', 'JEHAN SINGH VS DELHI ADMINISTRATION, (1974) AIR SC 1146', 'AMAR NATH VS. STATE OF HARYANA, (1977) AIR SC 2185', 'KURUKSHETRA UNIVERSITY VS. STATE OF HARYANA, (1977) AIR SC 2229', 'STATE OF BIHAR VS. J.A.C. SALDANHA, (1980) AIR SC 326', 'STATE OF WEST BENGAL VS. SWAPAN KUMAR GUHA, (1982) AIR SC 949', 'SMT.NAGAWWA VS. VEERANNA SHIVALINGAPPA KONJALGI, (1976) AIR SC 1947' and 'MADHAVRAO JIWAJIRAO SCINDIA VS. SAMBHAJIRAO CHANDROJIRAO ANGRE, (1988) AIR SC 709', 'STATE OF BIHAR VS. MURAD ALI KHAN, (1989) AIR SC 1', dealt with the contour of exercise of inherent powers of the High court under Section 482 of Code of Criminal Procedure. The view taken by the Supreme Court has been reiterated in the case of Bhajanlal supra. 10. The principles laid down in the aforesaid decisions have been reiterated by the Supreme Court in the case of 'THE STATE OF TELANGANA VS. HABIB ABDULLAH JEELANI & ORS, (2017) 2 SCC 779 '. The view taken by the Supreme Court has been reiterated in the case of Bhajanlal supra. 10. The principles laid down in the aforesaid decisions have been reiterated by the Supreme Court in the case of 'THE STATE OF TELANGANA VS. HABIB ABDULLAH JEELANI & ORS, (2017) 2 SCC 779 '. The illustrations read as under: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 55 of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground or proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and /or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. It is worthy to note that the court has clarified that the said parameters for guidelines are not exhaustive but only illustrative. It is worthy to note that the court has clarified that the said parameters for guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where courts inherent power can be exercised. 11. The Hon'ble Supreme Court in the case of 'K.K.AHUJA VS. V.K.VORA AND ANOTHER, (2009) 10 SCC 48 ', has held that the complainant has to make specific averments with regard to the Director of the Company that he was in charge of the affairs of the Company and mere reproduction of the wording of the Section is not enough. 12. In view of aforesaid enunciation of law, even if the allegations made in the complaint are taken at their face value to be correct, no offence against the petitioner is made out as the petitioner is neither a Director of the Company nor it is stated that he has been in charge of the Company. Therefore, continuation of proceedings against the petitioner amounts to abuse of process of law. In the result, the proceedings pending against the petitioner in C.C.No.19574/2018 pending before XXII Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed. Accordingly, the petition is allowed.