Yvonne Pushparaj vs L. Vivekananda

A.N. Venugopal Gowda, J.—The petitioner, arraigned as accused No. 3, facing prosecution in C.C. No. 822/2013, on the file of the XIII Additional Chief Metropolitan Magistrate, Bengaluru, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, filed this petition under Section 482 Cr.P.C., to quash order dated 17.01.2013 passed therein, taking cognizance and to dismiss the compliant, insofar as she is concerned.

The respondent having filed PCR No. 7091/2012, finding prima facie case and being of the opinion that there are sufficient materials to proceed against the accused, criminal case was directed to be registered and process was issued against the petitioner and two other accused.

Complaint was filed on the basis of a cheque allegedly issued by M/s. Handy 101 Solutions and Services Private Limited - first accused and by making its Managing Director, Mr. Peter Pushapraj, husband of the petitioner herein, as the second accused. The petitioner was arraigned as the third accused by stating that she is the Director of the first accused and is involved in day to day running of its business.

Along with this petition, certified copies of Form-32, issued by the Assistant Registrar of Companies, Karnataka, Bengaluru, showing the names of the original Directors of the said company and the Additional Directors during the relevant period was produced as Annexures-D, E and F. Perusal of the said documents would show that the petitioner was not a Director of the first accused - Company, at any point of time.

Mr. Vasanth V. Fernandes, learned advocate, contended that the learned Magistrate has erred in taking cognizance and issuing process against the petitioner. He submitted that there being a mechanical act on the part of the learned Magistrate, the impugned proceedings, as against the petitioner is liable to be quashed.

Sri R. Nataraj, learned advocate for the respondent, was unable to point out either from the complaint or from the sworn statement, muchless the documents produced, the petitioner having been a Director of the first accused - Company. He submitted that the petitioner being the wife of the second accused, who was the Managing Director of the first accused and being involved in the business of the company, was arraigned as accused No. 3.

Perused the record and considered the rival contentions. Point for consideration is, whether the ingredients of the offence punishable under Section 138 of N.I. Act, has been made out against the petitioner?

In order to constitute an offence punishable under Section 138 of the Act, the following ingredients are required to be fulfilled.

"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."

Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.

In the instant case, from the perusal of Annexures-D, E and F i.e., certified copies of Form-32, issued by the Assistant Registrar of Companies, Karnataka, the petitioner''s name does not appear as a Director of the first accused. It is not the case of the respondent that the cheque in question was issued by the petitioner for the discharge, in whole or in part of, any debt or other liability. As the petitioner has not drawn the cheque in question, in favour of respondent No. 2, she cannot be prosecuted. Neither the complaint nor the sworn statement, muchless the documents produced along with the complaint before the court below would show that the petitioner either signed the cheque or was a part of the business of accused No. 1.

In the circumstances, this petition being well founded, deserves to be allowed and the process issued against the petitioner deserves to be quashed. C.C. No. 822/2013, on the file of the XIII Additional Chief Metropolitan Magistrate, Bengaluru, filed against the petitioner being not maintainable, to the extent of the petitioner is dismissed.

However, learned Magistrate shall proceed against accused Nos. 1 and 2, in accordance with law, with as much expedition as is possible.