- 1 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 1971 OF 2021 (GM-RES) C/W WRIT PETITION NO. 1973 OF 2021 (GM-RES) BETWEEN: MR. ASHWIN KHEMANI S/O. MANOHAR MULCHAND KHEMANI, AGED ABOUT 45 YEARS R/O. NO. 7B, ALPS ESTATE, 460/1, KAIKONDANAHALLI, SARJAPUR ROAD, BENGALURU 560 100 …COMMON PETITIONER (BY SRI. KIRAN S. JAVALI, SR. ADVOCATE A/W SRI. SAMARTH SHREEDHAR, ADVOCATE) AND: 1. ICICI BANK LIMITED HAVING ITS REGISTERED OFFICE AT 'LAND MARK' RACE COURSE CIRCLE, VADODARA -390007 ALSO AT: 'SHOBHA PEARLS' NO. 1, COMMISSARIAT ROAD, BANGALORE 560025, NOW REP. BY ITS GENERAL MANAGER 2. M/S. OPTO CIRCUITS (INDIA) LIMITED A COMPANY REGISTERED UNDER THE COMPANIES Digitally signed by SWAPNA V Location: high court of karnataka - 2 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 ACT 1956, HAVING REGISTERED OFFICE AT PLOT NO. 83, ELECTRONIC CITY, BANGALORE 560 100 REP. BY ITS MANAGING DIRECTOR 3. MR. VINOD RAMANI THE MANAGING DIRECTOR, OPTO CIRCUITS (INDIA) LIMITED, PLOT NO. 83, ELECTRONIC CITY, BANGALORE 560100, ALSO AT NO. 27A, HOSUR MAIN ROAD, ELECTRONIC CITY, PHASE NO. 01, BANGALORE 560 100 4. MR. JAYESH CHANDRAKANT PATEL DIRECTOR, OPTO CIRCUITS (INDIA) LIMITED, PLOT NO. 83, ELECTRONIC CITY, BANGALORE 560100, ALSO AT: 7301, SPRUCE CIR LAPALMA, CALIFORNIA – 90623-USA 5. MR. THOMAS DIETIKER DIRECTOR, OPTO CIRCUITS (INDIA) LIMITED, PLOT NO. 83, ELECTRONIC CITY, BANGALORE 560100, ALSO AT: 6469, CHARTRES DR. RANCHO PALOS VERDES, CALIFORNIA 90275, USA 6. MR. RAJKUMAR TULSIDASRAISINGHANI DIRECTOR OPTOCIRCUITS (INDIA) LIMITED PLOT No.83, ELECTRONIC CITY BANGALORE – 560 100 ALSO AT SHANTI VILLA BLK No.673 ROOM No.4, OPP: BALKANJI BARI ULHASNAGAR MAHARASHTRA – 421 003 …COMMON RESPONDENTS (BY SRI. FRANCIS XAVIER, ADVOCATE FOR R1) - 3 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 THIS WRIT PETITION No.1971/2021 IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE COMPLAINT DATED 05.09.2015 IN CC.NO.22503/2015 IN PCR NO.13797/2014 FILED BY R-1 ON THE FILE OF XXVI ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (26TH ACMM) (ANNEXURE-A) AND QUASH THE ORDER DATED 05.09.2015 ALONG WITH THE ENTIRE PROCEEDINGS IN CC.NO.22503/2015 IN PCR.NO.13797/2014 FILED BY R-1 ON THE FILE OF XXVI ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (26TH ACMM) FOR THE OFFENCE PUNISHABLE U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT (NI ACT) ANNEXURE-B. THIS WRIT PETITION No.1973/2021 IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE COMPLAINT DATED 05.09.2015 IN CC.NO.17177/2015 IN PCR NO.8900/2015 FILED BY R-1 ON THE FILE OF XXVI ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (26TH ACMM) (ANNEXURE-A) AND QUASH THE ORDER DATED 05.09.2015 ALONG WITH THE ENTIRE PROCEEDINGS IN CC.NO.17177/2015 IN PCR.NO.8900/2015 FILED BY R-1 ON THE FILE OF XXVI ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (26TH ACMM) FOR THE OFFENCE PUNISHABLE U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT (NI ACT) ANNEXURE-B. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA COMMON ORAL ORDER The petitioner accused No.10 in both the writ petitions is seeking to quash the criminal proceedings initiated against him pending in C.C.No.22503/2015 - 4 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 (arising out of PCR No.13797/2014) and C.C.No.17177/2015 (arising out of PCR No.8900/2015) respectively, pending on the file of the learned XXVI Additional Chief Metropolitan Magistrate, Bengaluru (26th ACMM, Bengaluru) for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act' for short). 2. Since these two petitions arise out of two different criminal cases against the petitioner, where the facts are similar, same are taken up for disposal together under this common order. 3. Brief facts of the case are that, respondent No.1/ complainant filed the private complaint against accused Nos.1 to 10, alleging that accused No.1 is the Company registered under the Companies Act, 1956, and the other accused are the Directors. The petitioner being accused No.10 in both the petitions is the authorized signatory to accused No.1. It is stated that accused No.2 being the Managing Director, other accused being - 5 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 Directors and authorized signatory, were actively involved in day –to-day business/ affairs and financial transactions of accused No.1-Company and the petitioner herein, as the authorized signatory issued cheques in question, towards discharge of legally enforceable debt. When the cheques were presented for encashment, the same were dishonored as 'insufficient funds in the account of the accused'. Legal notice was issued to all the accused informing them regarding dishonor of the cheques and calling upon them to pay the cheque amount. It is stated that the petitioner has not replied to the legal notice, inspite of receipt of the notice. Thus, it is the contention of the complainant that all the accused, including the petitioner, have committed the offence under Section 138 of NI Act. 4. On filing the private complaint, the trial Court took cognizance of the offence and registered criminal cases against the accused including the petitioner. The - 6 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 petitioner is before this Court seeking to quash the criminal proceedings initiated against him. 5. Heard Sri. Kiran S. Javali, learned Senior Advocate along with Sri. Samarth Shreedhar, learned counsel for the petitioner and Sri. Francis Xavier, learned counsel for respondent No.1. Perused the materials on record. 6. Learned Senior Advocate for the petitioner contended that two different private complaints came to be filed by respondent No.1, alleging commission of offence punishable under Section 138 of NI Act. Similar allegations are made against the petitioner in both the complaints. The grounds urged by the learned Senior Advocate for quashing the criminal proceedings is that the petitioner is not the Director but, he is only an employee of the Company. There are no averments in the complaint to satisfy the requirement of Section 141 of NI Act. Under such circumstances, the criminal proceedings against the petitioner is liable to be quashed. - 7 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 7. Per contra, learned counsel for respondent No.1 contended that admittedly, the petitioner is the authorized signatory to accused No.1, which is a Company registered under the Companies Act. Accused No.2 is the Managing Director. In such capacity, the criminal complaints before the trial Court are being prosecuted against accused No.1 - Company, accused No.2 - Managing Director and the present petitioner, who was the authorized signatory to the cheques. Learned Senior Counsel has produced the copy of the letter dated 03.09.2014 contending that the petitioner has specifically stated in the letter that he is the authorized signatory of accused No.1- Company and in his capacity as such, he had issued the cheques and he is responsible for the affairs of the Company. He further contended that admittedly, the legal notice issued to the petitioner was served on him and there is no reply from him. Under such circumstances, the petitioner being the authorized signatory is liable for the trial for the offence punishable under Section 138 of the NI Act. - 8 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 8. In view of the rival contentions urged by the learned counsel for both the parties, the point that arises for my consideration is: “Whether the Petitioner has made out any grounds to allow the petition and to quash the criminal proceedings initiated against him?" My answer to the above point is in ‘Negative’ for the following: R E A S O N S 9. On perusal of the materials on record, especially the private complaint filed by respondent No.1 against the petitioner and other accused at paragraphs 4 and 5, it is specifically stated that accused No.1 is the Company and accused No.2 is the Managing Director, and accused Nos.3 to 9 are the Directors and the present petitioner is the authorized signatory to accused No.1 - Company. It is also stated that accused No.2 being the Managing Director, the other accused being the Directors, and the petitioner being the authorized signatory to accused No.1 - Company are actively involved in day-to- - 9 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 day affairs of the business and financial transactions of accused No.1 - Company. Thereby, the petitioner has pleaded about the requirement of law under Section 141 of NI Act. It is the specific contention of the complainant that the present petitioner being accused No.10, in both the petitions, is the authorized signatory and in such capacity, he had issued the cheques in question. 10. Learned counsel for respondent No.1 has produced the letter dated 03.09.2014 issued by the petitioner regarding declaration of post dated cheques. There is reference to as many as six cheques issued by the petitioner authorizing the complainant to present the cheques for encashment and ensured him that the cheques will be honoured on presentation. The petitioner has also agreed that any breach or default in complying with the undertaking given in the letter, will constitute a default on his part. - 10 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 11. Learned Senior Advocate for the petitioner never disputed the facts as stated in the letter. On the other hand, it is the definite stand that the petitioner is authorized signatory to accused No.1 - Company. 12. Learned Senior Advocate for the petitioner placed reliance on the decision of Hon'ble Apex Court in Susela Padmavathy Amma Vs. M/s. Bharti Airtel Limited1 in support of his contention that the ingredients in consonance with Section 141 of the NI Act is necessary to hold that accused is liable to the company for the conduct of its business. He also placed reliance on the decision of Hon'ble Apex Court in Sri. Gurudatta Sugars Marketing Pvt., Ltd., Vs. Prithviraj Sayajirao Deshmukh2 to contend that in the absence of necessary requirements to plead in the complaint, to satisfy the requirements of Section 141 of NI Act, the petitioner cannot be made liable for the offence under Section 138 of 1 (2024) 3 SCR 647 2 SLP(Crl.) Nos.8849-8850 of 2023 - 11 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 the NI Act. He also placed reliance on the decision of the coordinate Bench of this Court in Sri. Bhaskar Bodapati Vs. ICICI Bank Limited3 to contend that under similar circumstances, the coordinate Bench of this Court has quashed the criminal proceedings initiated against the accused. 13. Learned counsel for respondent No.1 has placed reliance on the decision of the Hon'ble Apex Court in Paresh P. Rajda vs. State of Maharashtra and another4 to contend that the Hon'ble Apex Court in categorical terms held that even in absence of any averments in the complaint, the signatory of the cheque book and the Managing Director of the Company, who are admittedly in-charge of the Company are responsible for the conduct of its business and are liable to be prosecuted under Section 138 of NI Act. He also places reliance on the decision of the Hon'ble Apex Court in S.P.Mani and 3 Crl.P.No.5914/2015 4 AIR 2008 SC 2357 - 12 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 Mohan Dairy vs. Dr.Snehalatha Elagovan5 to contend that there are prima facie materials to support the contention of the complainant that the accused is responsible for the conduct of business of the Company and the criminal proceedings against the accused is not liable to be quashed. 14. On going through the materials on record, it is clear that respondent No.1, as complainant, has clearly pleaded that accused No.1 is the Company and accused No.2 is the Managing Director and the present petitioner is the authorized signatory. The letter produced by the learned counsel for respondent No.1 confirms the fact that the petitioner is the authorized signatory. Interestingly, even the learned Senior Advocate for the petitioner is not disputing the fact that the petitioner is the authorized signatory for the Company and he issued the cheques in question. It is also not disputed that the petitioner has received the legal notice, got issued by the complainant 5 (2023) 10 SCC 685 - 13 - NC: 2025:KHC:3779 WP No. 1971 of 2021 C/W WP No. 1973 of 2021 and in spite of that he has not issued any reply. When such being the case, the contention of the petitioner that he is not liable to be prosecuted for the offence under Section 138 of NI Act, cannot be accepted. The contention of the learned Senior Advocate for the petitioner that the legal notice was issued only under Section 138 of NI Act and not under Section 141 of NI Act do not enure to his benefit in any manner. If at all the petitioner is having any defence, he has to place the same before the trial Court, but he is not entitled for any relief in the present petitions. Accordingly, I answer the point in the Negative and proceed to pass the following:- ORDER The petitions are dismissed. Sd/- (M G UMA) JUDGE BVK - Paras 1 to 13 MH - Paras 14 to 15 List No.: 1 Sl No.: 14