At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE S. VISHWAJITH SHETTY
For the Petitioners: S. Samartha, Advocate. For the Respondent: --------
(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the impugned order dated 17.07.2019 passed in C.C.No.54778/2019 pending before the XXXIV Addl.C.M.M., Bengaluru as per the Annex-A and also set aside all the proceedings pursuant thereto pending before the said Court, etc.)
1. Heard the learned counsel for the petitioners.
2. The petitioners, who are accused Nos.1 to 4 before the court of LVIII Addl.CMM., Bangalore in C.C.No.54778/2019, have approached this court with a prayer to quash the entire proceedings in the said case which is registered for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the said Act of 1881”).
3. Brief facts of the case leading to filing of this petition are:
The complainant has filed a complaint before the trial court for an offence punishable under Section 138 of the said Act of 1881 against the petitioners herein. It is alleged in the complaint that, with regard to supply of certain material to the accused Company, towards the invoices raised by the complainant Company, a cheque was issued by the accused for a sum of Rs.20,58,043/- and the cheque on presentation for realization was dishonoured by the drawee Bank with an endorsement “funds is insufficient”. The complainant after complying with the statutory requirement had filed a private complaint before the trial court and the trial court after recording the sworn statement of the complainant has taken cognizance of the alleged offence and has issued summons to the petitioners herein, who are accused Nos.1 to 4 before the trial court. Being aggrieved by the same, the present petition is filed.
4. Learned counsel for the petitioners submits that the complaint is defective for the reason that in the prayer column, Section 141 of the said Act of 1881 has not been invoked and when the Company and its Directors are sought to be prosecuted, unless the complainant invokes Section 141 in the prayer column, the trial court could not have taken cognizance only for the offence under Section 138 of the said Act of 1881. He also submits that the mandatory notice issued to the accused persons were not served on them and therefore, there was no cause of action for lodging the complaint. He submits that the complainant has subsequently approached the Micro and Small Enterprises Facilitation Council, MSEFC, Mumbai and also National Company Law Tribunal, Mumbai, seeking relief against the petitioners with regard to the same subject matter and therefore, he submits that parallel prosecution of the petitioners is not permitted. He refers to the impugned order and submits that, cognizance has been taken only for the offence under Section 138 of the said Act of 1881 and no cognizance has been taken for the offence under Section 141. He also relied upon the judgment of the Apex Court in the case of Aneeta Hada –vs- M/s.Godfather Travels and Tours Pvt.Ltd. ((2012) 5 SCC 661)
5. There is absolutely no merit in the contention of the learned counsel for the petitioners that Section 141 of the said Act of 1881 has to be invoked in the prayer column of the complaint itself and unless the said provision is mentioned in the prayer column, case against the Company and its Directors cannot be registered. Section 141 of the said Act of 1881 being a enabling provision so as to proceed against the Company and its Directors, mentioning of the said provision in the prayer column is not at all required. His submission that cognizance has to be taken even under Section 141 of the said Act of 1881 has also no substance for the reason that Section 141 is not a penal provision and therefore, there is no question of taking cognizance of the said Section before issuing notice to the accused persons.
6. Learned Counsel has also made a submission that the statutory notices are not served on the accused persons. From a reading of para-12 of the complaint, it is very clear that the statutory notices issued to the accused persons have been duly received by them and the acknowledged receipt has also been produced before the trial court. Further, the judgment relied upon by the learned counsel for the petitioners has no bearing to the facts of the present case. In the present case, there is a specific averment that petitioner Nos.2 and 3, who are the Directors of the Company, are actively participating in the affairs of the Company and therefore, rightly the Company as well as its Directors who are participating in the day-to-day affairs of the Company, are made as parties. In para-2 of the complaint it is specifically averred that accused Nos.2 to 4, the Directors of the first accused Company are completely aware of the business transactions and they are the participants in the regul
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ar business transaction of the Company. 7. Under the circumstances, I do not find any illegality or irregularity either in the proceedings initiated by the complainant or in the order passed by the trial court taking cognizance of the offence under Section 138 of the said Act of 1881. Therefore, I find no ground to entertain this petition. Accordingly, the Criminal Petition is dismissed. In view of disposal of the petition, pending I.A. does not survive for consideration. Hence, it stands disposed of.