HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL PETITION No.8589 of 2015

ORDER:

This Criminal Petition is filed under Section 482 Cr.P.C. seeking to quash the proceedings against the petitioners/accused Nos.3 and 4 in C.C.No.403 of 2012 on the file of the learned IV Additional Chief Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad.

2. The brief facts of the case which lead to filing of this Criminal Petition are that respondent No.2/de facto complainant is one of the Directors of accused No.1 - M/s. Immortal Infra Projects India Private Limited, Hyderabad, which is engaged in developing various infrastructure activities and execution of works allotted to them as sub-contractors and accused No.2 is the Managing Director and accused Nos.3 and 4 are the Directors of the Company; that they entered into a Settlement Agreement on 23.01.2012 and that as there were some disputes arose among them, as per the said agreement, respondent No.2 had to resign from the post of Director of accused No.1 Company and is entitled to receive a sum of Rs.22,00,000/-, as against which, the accused persons gave 8 cheques to respondent No.2, upon which, respondent No.2 presented a cheque bearing No.326853 dated 27.02.2012 for a sum of Rs.2,00,000/- drawn on HDFC Bank but the said cheque was returned vide cheque return memo dated 21.03.2012 on the ground of insufficient funds. In the circumstances, respondent No.2 got issued a legal notice dated 16.04.2012 to the accused but the same was returned. Therefore, respondent No.2 filed a complaint under Section 200 Cr.P.C. before the learned IV Additional Chief Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad, and the said complaint was numbered as C.C.No.403 of 2012 for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. It is the case of the petitioners/Accused Nos.3 and 4 that as per the said agreement, respondent No.2 would resign from the post of Directorship and his shares would be transferred if the agreed amount is paid, in default of which, it would carry interest @3% thereon and unless the amount is paid, the shares would not be transferred to the Company; the cheques in question were issued by Accused No.2 from his personal account; that respondent No.2 has not parted with the shares and is holding the same; that the alleged cheques are no way related to the Company; that the petitioners/Accused Nos.3 and 4 are not drawers of the cheque; that respondent No.2 is a part of the company but he has neither filed any civil suit for specific performance of the agreement nor initiated any recovery proceedings against the accused persons, as such, there is no legally enforceable debt. Under these circumstances, the petitioners/accused Nos.3 and 4 have filed the present Criminal Petition for quashing the proceedings against them in C.C.No.403 of 2012.

4. Learned counsel for the petitioners/accused Nos.3 and 4 submits that the petitioners are mere Directors of accused No.1 Company and are not responsible for the day-to-day affairs of the Company; that the Settlement Agreement dated 23.01.2012 could not be acted upon; that respondent No.2 did not submit his resignation and Form-32 of the Companies Act does not show that he is ceased to be the Director of accused No.1 Company and therefore, the cheque in question cannot be called for any legally enforceable debt nor any other liability, thereby, he prayed to quash the proceedings against the petitioners in C.C.No.403 of 2012.

5. Learned counsel for respondent No.2 would submit that the petitioners are the existing Directors of accused No.1 company as such they are responsible for clearance of the cheque in question and that after the cheque in question was dishonoured on the ground of lack of funds, respondent No.1 approached the petitioners and demanded for payment of the amount, but, the petitioners neither paid the cheque amount nor given proper response and that the petitioners were fully aware that