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2020 DIGILAW 25 (AP)

Viswasani India Developers Private Limited v. Gonapati Parameshwar Reddy

2020-01-21

U.DURGA PRASAD RAO

body2020
JUDGMENT : U. DURGA PRASAD RAO, J. 1. In this petition filed under Section 482 of Cr.P.C. petitioners/A1 to A3 implore to quash the proceedings against them in C.C. No. 178 of 2012 on the file of Judicial First Class Magistrate, Koilkuntla, Kurnool District, which was taken cognizance for the offences under Sections 138 r/w 142 of Negotiable Instruments Act, 1881 (for short ‘NI Act’). 2. The complaint allegations briefly are that A-2 and A-3 are the Managing Director and Director respectively of A-1 firm, which is a financial institution established under the name and style of Viswasani India Developers Private Limited. The complainant got acquaintance with the accused and hence he lent Rs. 9,40,000/- in the year 2011. In due discharge of the said legally enforceable debt, A-2 being authorized signatory of RJV Marketing Private Limited and Viswasani India Developers Private Limited issued a cheque to the complainant bearing No. 059309 dated 27.05.2012 for Rs. 9,40,000/- drawn on Axis Bank Limited, Dilshuknagar Branch, Hyderabad. The complainant presented the same in S.B.I. Koilkuntla, which was sent for collection to Axis Bank. However, cheque was returned by S.B.I. with return memo dated 10.09.2012 sent by Axis Bank stating account closed. The complainant got issued a legal notice dated 20.09.2012, which was served on A-2 but so far A-1 and A-3 are concerned, the same was not returned. The accused have not paid the amount. Hence the complaint. 3. The petitioners/A-1 to A-3 challenged the complaint on the ground that though the alleged cheque was issued by RJV Marketing Private Limited, the said company was not arrayed as an accused and on the other hand, the complaint is filed against Viswasani India Developers Private Limited and hence, the complaint is not maintainable against the accused. It is further contended that no averments are made against 3rd petitioner/A-3 as to his role. The 3rd petitioner/A-3 is the Director of the 1st petitioner company and he is no way concerned with the day to day business activities, hence the complaint is not maintainable against him. 4. Respondent appeared through his counsel and filed counter opposing the petition. The respondent while admitting that the subject cheque was issued by M/s RJV Marketing Private Limited, represented by its authorized signatory and Managing Director viz. 4. Respondent appeared through his counsel and filed counter opposing the petition. The respondent while admitting that the subject cheque was issued by M/s RJV Marketing Private Limited, represented by its authorized signatory and Managing Director viz. Smt. Rudravarapu Jhansi Rani, would submit that she is also an authorized signatory and Managing Director of M/s Viswasani India Developers Private Limited. However, due to oversight and as the Managing Director and Director of both the firms are one and the same, the name of M/s Viswasani India Developers Private Limited is mentioned instead of M/s RJV Marketing Private Limited. As such wrong mentioning the name of another firm by mistake is not a ground to quash the proceedings: It is further mentioned in the counter that the Managing Director and Directors of the company are equally liable for day to day activities and as such there is no irregularity or illegality in arraying the 3rd petitioner as A-3 in the complaint. It is not true to contend that the 3rd petitioner is not concerned with the day to day business operations. In the counter, the contents in the reply notice dated 21.02.2012 to the effect that RJV Company was not in existence and it closed its bank account on 28.09.2010 were denied. The respondent thus prayed to dismiss the criminal petition. 5. Heard. 6. As can be seen, the main plank of argument of learned counsel for the petitioners is that while the cheque was issued by the authorized signatory of M/s RJV Marketing Private Limited, the private complaint is filed against M/s Viswasani India Developers Private Limited and its Managing Director and Director and therefore, without impleading the company which issued the cheque, the complaint is not maintainable against the others. The petitioners placed reliance on a number of citations to buttress their contention that without impleading the company, which issued the cheque, the complaint is not maintainable against its Directors. The petitioners placed reliance on a number of citations to buttress their contention that without impleading the company, which issued the cheque, the complaint is not maintainable against its Directors. On the other hand, the contention of the respondent/ complainant is that the cheque was no doubt issued by M/s RJV Marketing Private Limited represented by its authorized signatory-cum-Managing Director, who is the 2nd petitioner herein, however, the petitioners 2 and 3 herein are the Managing Director and Director of both M/s RJV Marketing Private Limited as well as M/s Viswasani India Developers Private Limited and by mistake the name of M/s Viswasani India Developers Private Limited is mentioned in the private complaint instead of M/s RJV Marketing Private Limited. 7. In the light of the above respective contentions, the nub of the issue would be whether the petitioners 2 and 3 are also the Managing Director and Director respectively of both the companies and whether the 2nd petitioner is the authorized signatory of both the concerns and whether the respondent has, by mistake mentioned the name of M/s Viswasani India Developers Private Limited instead of M/s RJV Marketing Private Limited and its legal consequence on the complaint. In my considered view, these crucial aspects can be better appreciated only after full fledged trial in the criminal case. Therefore, without touching the merits of the case, the criminal petition is dismissed and having regard to the fact that the criminal case is an old one of the year 2012, the trial Court is directed to proceed with the trial and complete the same expeditiously, but not later then six months from the date of receipt of a copy of this order. 8. Accordingly, this criminal petition is dismissed. No costs. 9. As a sequel, Interlocutory Applications pending if any, shall stand closed.