Rep. by its Partners Mr v. Aravind Swamy And A. Satish Kumar

3. M/s. AVS Food and Beverages, A partnership firm registered under the Indian Partnership Act and having its office at No.54, Arcot Road, Valasaravakkam, Opp to New Madras meals hotel, Chennai-600087 Rep. by its Partners Mr. V. Aravind Swamy And A. Satish Kumar

4. V. Aravind Swamy, S/o. Venkatesan V, R/o. No.40, Krishna Nagar,4tn Cross street, 1st main road, Maduravoyal, Chennai-600095.

5. A. Satish Kumar, S/o. Arivuselvam, R/o. No.52, F2, Padmdalam Apartments, 3rd Main road, Alwarthirunagar Annex, Chennai-600087. ...RESPONDENTS Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of criminal Petition, the High court may be pleased to quash the proceedings against the Petitioner/ Accused No.4 in CC No' 4480 of 2019 on the file of Hon'ble Vlll Addl- Chief Metropolitan Magistrate, Metropolitan Criminal Courts, at Kukatpally Hyderabad I.A. NO: 1 oF 2019 Petitron under section 4g2 0'f cr.p.c praying that in the circumstances stated in the Memorandum of Grounds or crrminal'Felition.the Higr c;;;;;y1" pleased to grant interim stay of further proceedings against the petitroner / Accused No4 in cC No 44BO ot 2019 on *re iG.or Hon'bre Vr, Addr chief Metroporitan Magistrate, Metroporitan criminar rt Kukatpa y, HyderTbad, rncluding the appeara rce of petitionerl RccusJ ruo.4 pending d sposar of the above criminal petitir:n . -cor.t. This petitjon coming on for hearing,upon perusing the Mermorandum of Grounds of criminal petition and upon hearing the argun.rents of sri DHANANJAYA NAIDLi KOLLA ,Advocate for the petrtioner :;nd Sri M. REDi)y, Asst. pubric prosecutor on behalf of thr,r Respondent 'I,EKANANDA No '1 and of Ir4/S KESrrVi KUMART NEMALA, Advocate for the Respondent No. 2. CRIMINAL PETITION NO: 7630 0F 2019 Between: V R. Vignesh, Ex- paflrrer, S/o. Veeracholan N, R/o.^No, B_3. Suryzr Apartments, No. 88, Kamaraja r Sa ta i virs ugimLikla";l6nunnri]otoosz AND ...PETITIONER/ACCUSED No. -4

1. state of rerangana, Rep.by its pubric prosecutor, High court, Telangana 2 The Thick shake Factory private. Limited, Having its registered oflice at prot No 76 Swarnacu.i corony..MotiJ.Gs;;,;ii;ilt,j_sooore, Rep ry its Authorized Sis n a,c,ry rtlr'C niiiasoiii#il'""" 3. M/s. AVS Food irnd Beverages, A partn-ership firm regrstered und*r the lndian Partnership Act and having its offiie at No.sd, ni.ot Road, Varasaravakkam opp to New rr4artr r s mea Ii n"tJr, *,""""i-6obbs;"i$ rt ;;,p;,,il["t?, V Aravind Swamy A rd A Satish Kuma; 4. V. Aravind Swanri. S/o. Venkatesan V. R/o. No.40. Krishna Nagar. 4rh Cross 5. A. Satish Kumar. S,o. Arivuselvam, R/o._No.52, F2, padmdalam ADartments. street 1 st ma rn ro ad. rr,lao urivoyli' cii",i", i:o"oo'ds" 3rd Main road Arwarthirunagar Annei,-bfr"nnli_O?OOez '"' """""' ' ...RESPONDENTS Petition under Section 482 of Cr.p.C praying that in the cirr:umstances stated in the Memorancunr of Grounds or cririlar'peirtion, the High c(,urt mav be pleased to quash the cr rceedings against th; pei,tioner/Accused No.4 in CC No 3451 of72o19 on the rrre of H"on'br"e vrli noor. 6ii"r Mu,roporitan rr/agistrate, Melropolitan Criminal Ccu,1s. at Kukatpally iVO"irOrO and pass l.A. NO: 1OF 2019 Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to grant interim stay of further proceedings against the Petitioner / Accused No.4 in CC No.3451 ot 2019 on the file of Hon'ble Vlll Addl. Chief Metropolitan Magistrate, Metropolitan Criminal Courts at Kukatpally, Hyderabad, including the appearance of Petitioner/ Accused No-4 pending disposai of the above criminal petition. This Petition coming on for hearing,upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri DHANANJAYA NAIDU KOLLA ,Advocate for the Petitioner and Sri M. VIVEKANANDA REDDY, Assistant Public Prosecutor on behalf of the Respondent No.1 and of M/S. KESAVI KUMARI NEMALA,-Advocate for the Respondent No. 2 The Court made the following COMMON ORDER THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL Fptrtror Nos.7625 & 7630 0F 2U^79 COMMON ORDER: Crl.P.Nos;.7625 & 7630 of 2olg are filed by the petitioner/A-4 questioning the proceedings against him in C.C.No.44B0 ol 2.O19 and C.C.No.345 1 of 2019, respecrively, on the file of \rIIl Additional Chief Metropolitan M:rgistrate, Metropoiitan Cr|rnina_l Courts at Kukatpally, Hyderabact., for the offences under Sections 138 and 14l of the Nr:gotiable Instruments Act, regarding the dishonor of cheque bearing No.000557 for Rs.2,47,S60/- and cheque bearing No 000556 for Rs.1,64,O3,692/ -, both dated 28.O6.2019, respectivety.

2. Since the ltetitioner is one and the same in b,oth the criminal petitions, and the issue involved in these p,etitions arise out of the r.ery same incident, both'the petitions are heard together and di,sposed of by way of this common order.

3. Heard tLLe learned counsel for the petitionlrr and Sri M.Vivekananda Reddy, the learned Assistant public Prosecutor for t.he respondent - State. perused the record. )

4. The 2'd respondent-The Thick t, tn"j: Limited, hled a complaint against M/s. AVS Factory Private ood & Beverages _t' as A-1, and A-2 to A-4, who are the partnerp in the said hrm. According to the complaint, the complaiirant,had permitted A-1 firm to open a franchise store in Chennai. After due diligence, I permission was granted to the accused for opqning and running i -t. the franchise store. Over a period of time, the complainant company supplied specialty ice cream and related products for use in the said franchise store. As per the agreement, the I accused were reqrrired to pay an amount of Rs. 1,83,533/-. Towards paJ,T nent of the principal and interest amount, the cheques in question for Rs.2,13,8961- and Rs.2,a7 '560/- were issued on behalf of A- 1 firm. However, when presented for clearance, both cheques were returned unpaid. I :

5. The cheques presented were returned; on the ground of 'Payment Stopped by Drawer'. According t9 the comPlainant, the cheques were issued towards a legatly enforceable debt owed by all the accused. Notices were sent, and since the I I accused failed to PaY the amount covered by the cheques, the I complaint was filed. 6 The present petitioner is arrayed as A-4 in the complaint. 3 7 . Learned (rounsel appearing for the petitione r would submit that, firstly the petitioner had resigned long b,,rfore the issuance of the cheques in question. Secondly, ther.r are no averments in thr. complaint specifically against this pr:titioner. Vicarious liabilit'r would arise, and a partner can be mulcted with criminal liability only when speciflc allegations ar:: ieveled against them u,irhithe aid of Section 141 of the NI Act

8. On the other hand, the learned counsel appearinrl for the complainant would submit that the petitioner's contenlion that he had retired from the partnership cannot be acceptr:d since his retirement 'was not in accordance with law.

9. As seen from the complaint, a general allegation is made against the petitioner regarding the supply of material over a period of time. "'ne complaint collectively addresses that all the accused were responsible for approaching the complaiitant for the franchise store and were actively looking after the day-to- day affairs of l\- I firm. The Hon'ble Supreme Court, in Siby Thomas vs. M/s.Somany Ceramics Ltdl, held as under::- "12. Bearirrg in mind the afore-extracted recitals from the decisions in C rrnmala Sales Private Limited,s case (supra) ald S.P. Mani'.s crts;e (supra), we have carefully gone through the ' lzoz: y r: scn s: r 4 I amounting t, uTn, complaint hled by the respondent' It is not averred an1'where in the complaint that the appellant was in charge of the conduct of the business of the company at the relevant time when the offence was committed. What is stated in the complaint is only that the accused Nos. 2 to 6 being the pa$ners are responsible for the day-to-day conduct and business of the company- It is also relevant to note that an overall reading of the complarnt would not disclose any clear and specific role of the appellant. In the statutory notice dated 10.09.2015 (Annexure-P6) at paragraph 3 it was averred thus:- "16. That for liquidation of the aforesard legal issued cheque to Rs dated 21.O8.2O75, number 005074 on Punjab National Ernhipalam 27,46,737 l- drawr, (Kozhikode) branch in favour of my client fro1, the account of noticee No. 1." In response to that in Annelle- P7 reply the appellant herein stated thus:- "ln this regardJ.l would like to convey you that, I have retired from M/s Tile as partner M/s' Tile Store way back on 28-5-2013 and I am not a partner any more. (Copy of Retirement deed enclosed).lDuring the time of my retirement, there were no dues to M/s. Sgmany Ceramics Ltd. from M/s. Tile Store as full payments were made for the consignments taken from them. (Copy of accounts statements up ro 3l-05-2013 enclosed)" 16. Thus, in the tight of the dictum !4([pgq-;@ Ashok a vicarious Shewakramani's case (supra), it is evident fat liability would be attracted only when the ingredients of Section 14 I { l) of the NI Act, are satished. is managing It would also reveal that merely because the affarrs of the company, per se, he wouldrnot become in charge of the conduct of the business of the lcompany or the person responsible to the company for the ,l conduct of the business of the company. A bare perusal of Secti.on 141(1) of the NI Act, woutd reveal that only that person who, at the time the offence was committed, was in charge of and was responsible to "o-"!oay lstore 1f I I ) I t the compa:r., for the conduct of the business of the compa-ly, as well as the. l,lmpany alone shall be deemed to be guilty ,tf the offence arLd shall be liable to be proceeded against and punished. In such circumstances, paragraph 20 in ,,\shok Shewakramani's case (supra) is also relevaqt.-After referring to the Section --11[1) o[ NI Act, in paragraph 2O it was further held thus: '2O On a plaLnireading, it is apparent that the rvords ,,u.as in charge of' zrrLd 'was responsible to the company for the co:rduct of the busjness of the company,' cannot be read disjunctively and the sarne otrght be read conjunctively in view of use c,f the word "and" ir between." I

10. The corrLplainant, except for making general s latement that this petitioner was responsible along with tlre other accused, has not specified the role played by this petitioner in the transactionsi { between the complainant and A-1 Iirm. Following the judgment of the Hon,ble Supreme Court in the above cited ju<1gnlent, unless the role played by the petitioner in the transactions is specifically narrated, the que stion of continuing the criininal proceedings against this petitiorrer does not arise. t I 1 1 1 . In view o1' the same, the proceedings agail:tst the petitioners are liable to be quashed 12 ' Accordingll', r the criminar petitions are arlowed i rnd the proceedings against the petitioner in c.c.No.44g0 of 2cr 19 and 6 C.C.No.3451 of 2019, are hereby quashed. Miscellarreous aoolications oendine. if anv. shall stand closed. \ To, SD/. P PADMANABHA REDDY DEPUTY REGISTRAR //TRUE COPYII SECTION OFFICER 1 2 4 ( 6 n Magistrate' Mekopolitan criminal The Vill Additionat Chief Me courts at Kukatpaily, Hyd"rrt;o#lit' The Station Holrse Officer , Miyapur police Station, Ranga Reddy Diskict Two CCs to Public prosecrrtor, High Court for the State of Telangana at Hyderabad (OUT) One CC to SRI DHANANJAYA NATDU KOLLA Advocate [OPUC] One CC to M/s KESAVA KUMARI NEMALA, Advocate tOpUCl Two CD Copies kul/PSL w I HIGH COURT DATED:2610312O25 COMMON ORDER CRLP.Nos.7625 and 7630 of 201 9 ( c) o o HE STAI- ( 1 15 APH zIIfi , I oEs par c t{ 6'0 z a .L {t , ALLOWING THE BOI-H CRL.PETITIONS q lb e{