MRS PHIROZAH N RUSTUMJI v. A COMPANY REGISTERED UNDER COMPANIES
Case at a glance
- Bench
- SUBHASH B ADI
Outcome
Partly allowed
Accordingly, all these petitions are partly allowed
Provisions considered
Key paragraphs
- Para 55. As such, insofar as the petitioner – accused No.2 is concerned, both the Counsel do not dispute that she is the only guarantor, as such, the proceedings against the guarantor for an offence punishable under Section 138 of the Negotiable Instruments Act is not…
Judgment
( By Sri.M.G.S.KAMAL, ADV. ) IN CRL.P.NOS, 503, 504 & 505/2012 AND : 1 M/S VASWANI INVESTMENTS & HOLDINGS (P) LTD A COMPANY REGISTERED UNDER COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.46/3, FAIR FIELD LAYOUT, RACE COURSE ROAD, BANGALORE-52 ALSO HAVING OFFICE AT: NO.28, SANKEY ROAD, BANGALORE REP BY ITS AUTHORISED SIGNATORY 2 MR M S REDDY 2 MR N H RUSTUMJI S/O LATE HOMI RUSTOMJEE AGED ABOUT 66 YEARS G 15 & 16, RICHMOND TOWERS NO.12 RICHMOND ROAD BANGALORE-560025 ...RESPONDENTS ( By Sri. B S SATYANANDA, ADV. ) IN CRL.P.NOS.506, 507 & 508/2012 AND: 1 M/S MAC CHARLES (I) LTD A COMPANY REGISTERED UNDER COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT P B NO.174, NO.28, SANKEY ROAD, BANGALORE-52, REP BY ITS FINANCIAL CONTROLLER & COMPANY SECRETARY, MR M S REDDY S/O MR M BASI REDDY AGED ABOUT 58 YEARS 2 MR N H RUSTUMJI S/O LATE HOMI RUSTOMJEE AGED ABOUT 66 YEARS G 15 & 16, RICHMOND TOWERS NO.12 RICHMOND ROAD BANGALORE-560025 ...RESPONDENTS THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO DIRECT TO DROP ALL FURTHER PROCEEDINGS THEREOF AGAINST THE PETITIONER IN C.C.NOS.56573/2009, 53222/2009, 53223/2009, 53224/2009, 53225/2009 and 53226/2009 RESPECTIVELY PENDING BEFORE THE XIV ADDL.CM.M., 3 MAYO HALL, BANGALORE AND SET ASIDE THE ORDER DT.11.11.2011 IN CR.R.P.NOS.25026/2011, 25027/2011, 25028/2011, 25029/2011, 25030/2011 & 25031/2011 RESPECTIVELY PASSED BY A.S.J., & P.O., FTC-III, MAYO HALL, BANGALORE. THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R All these petitions are filed by the accused No.2 in C.C.Nos.56573/2009, 53222/2009, 53223/2009, 53224/2009, 53225/2009 and 53226/2009 respectively on the file of XIV Addl.C.M.M., Mayohall, Bangalore.
Petitioner had filed an application before the learned Magistrate seeking for dropping of the proceedings on the ground that, the proceedings for an offence punishable under Section 138 of the Negotiable Instruments Act cannot be proceeded against the petitioner as she is neither a drawer of the cheque nor payee or she is in any way connected with the account. The said application was rejected against which, revision petitions were filed. Revision Petitions were also rejected. As against both the orders, the petitioner is before this Court. 4
Facts, which are not in dispute are that, the complainant in his complaint has specifically stated that the accused No.1 is the holder of the account. He has issued the cheque for the alleged debt and the said cheque has been dishonoured.
To constitute an offence under Section 138 of the Negotiable Instruments Act , it is the drawer of the cheque is the accused and not the person, who may be the guarantor or may not be the guarantor. To prove the loan transaction, a person cannot be arrayed as an accused. The only person, who is liable to be prosecuted, is the person who is responsible for the same. In case of Company, it is the person, who is responsible for discharge of the function of the Company as contemplated under Section 141 of the Negotiable Instruments Act.
Operative part
As such, insofar as the petitioner – accused No.2 is concerned, both the Counsel do not dispute that she is the only guarantor, as such, the proceedings against the guarantor for an offence punishable under Section 138 of the Negotiable Instruments Act is not maintainable. 5 However, if there are any other proceedings between the parties, such proceedings shall go on without being prejudiced by the rejection of the complaint insofar as this petitioner is concerned. Accordingly, all these petitions are partly allowed. The proceedings as against this petitioner in C.C.Nos.56573/2009, 53222/2009, 53223/2009, 53224/2009, 53225/2009 and 53226/2009 respectively on the file of XIV Addl.C.M.M., Mayohall, Bangalore, stand quashed and against accused No.1, they shall go on. Sd/- JUDGE KNM/-
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, all these petitions are partly allowed
Which statutory provisions did this judgment involve?
Companies Act, 2013; Code of Criminal Procedure, 1973 — s. 482; Negotiable Instruments Act, 1881 — ss. 138, 141.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.