D.S. SHENOY AND ORS. Vs. BALDEV LULLA

JUDGEMENT

(1.) RESPONDENT is the complainant and the petitioners are accused Nos. 3 and 5 in C.C. Nos. 11689/2011, 11698/2011, 11699/2011, 14316/2011, 21865/2011 and 26226/2011, pending on the file of the XIII Additional Chief Metropolitan Magistrate, Bengaluru. The said criminal cases were instituted against Green Wood High Trust and four others, alleging commission of an offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act'). Indisputedly, accused No. 3 - D.S. Shenoy, is not a trustee of accused No. 1 - Trust. Accused No. 5 - Smt. Rajashree, is the wife of accused No. 2 - Mr. K.C. Vijaya Kumar. Both K.C. Vijaya Kumar and his wife, no doubt are the trustees of accused No. 1 - Green Wood High Trust. Accused No. 2 having issued 16 post dated cheques and the cheques, when presented having been dishonoured by the Bank, on which they were drawn, for the reason "funds insufficient", after demanding payment by issue of notice/s, the complaint/s were filed by alleging that accused No. 2 issued the cheques on behalf of accused No. 1, without keeping sufficient fund in the bank account, to honour the cheques issued to the complainant. According to the allegation in the complaint, cause of action for the complaint/s arose when accused No. 2 issued the cheques through accused No. 1, in discharge of their liability to the complainant and on account of failure to pay the amount even after service of demand notice/s. To quash the above said criminal cases, these petitions were filed by accused Nos. 3 and 5, on the ground that the cheques were not issued on the account of accused No. 1 and that they are not signatories to the cheques and that there is no debt or other legal liability, which they are liable to discharge.

(2.) LEARNED advocates contended that the ingredients of the offence under Section 138 of the Act, as against the petitioners being not existing in the complaint/s filed by the respondent, the prosecution of the petitioners in the court below amounts to abuse of process of law and hence, these petitions are liable to be allowed and the impugned proceedings, insofar as accused Nos. 3 and 5/petitioners are concerned, are liable to be quashed.

(3.) IN order to constitute an offence under Section 138 of the Act, in Jugesh Sehgal v. Shamsher Singh Gogh : (2009) 14 SCC 683, the ingredients require to be fulfilled have been enumerated as follows: