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Judgment
A.N. Venugopala Gowda, J.—Heard learned Counsel on both sides and perused the petition papers.
Respondent herein filed a complaint in PCR No. 388/2002 on the file of the JMFC-II Court at Hassan against the petitioners and 2 others alleging commission of an offence punishable u/s 138 of the Negotiable Instrument Act. The said complaint has now been registered as C.C. No. 890/2004. In that complaint, it is alleged that the petitioners herein are the partners of firm M/s Gateway Suvama Arcade, B.M. Road, Hassan and towards discharge of their liability, one of the partners of the firm viz., Mr. S.S. Ravishankar, issued a cheque bearing No. 577805 dated 5.10.2002 for a sum of Rs. 50,000/- drawn on Vijaya Bank Ltd., Hassan branch in favour of M/s Vardhaman Telecom, which is a proprietary concern or the complainant. The said cheque having not been honoured by the banker on which it was drawn, after issuing the statutory notice and in view of non payment, the complaint was lodged, which was taken cognizance of and the case is registered and process issued to all the 4 accused persons. The petitioners are seeking quashing of proceedings in the said case insofar as they are concerned.
Accused No. 3 in the aforesaid criminal case had filed Crl.P. No. 2834/2007 in this Court seeking quashing of proceedings. The grounds urged in favour of quashing in the said petition are exactly the same as in the instant petition. This Court while allowing the said petition, has observed as follows:
Since the cheque in question has not been issued by the partnership firm and apart from that the petitioner has not signed the cheque nor responsible for payment of the cheque in question, it cannot be said that prima facie case is made out as against the present petitioner/accused No. 3 for the offence u/s 138 of the Negotiable Instruments Act. Therefore, the petitioner is entitled to succeed.
When the said order was brought to the notice of learned Counsel appearing for the respondent/complainant, learned Counsel submitted that, the decision of the Apex Court in the case of N. Rangachari Vs. Bharat Sanchar Nigam Ltd., was not brought to the notice of the Court and that apart, the principles of res judicata are not applicable in criminal proceedings and to that effect, she relied upon a decision in the case of Devendra and Others Vs. State of U.P. and Another, . Learned Counsel contended that, the prosecution of the petitioners for the offence u/s 138 of the Negotiable Instrument Act is called for.
I find difficulty in accepting the submissions of Smt. Kavitha, learned Counsel appearing for the complainant. The complaint was filed against the petitioners herein as well as Smt. Sharada Balakrishna, who was arraigned as accused No. 3 in the complaint. Said accused No. 3 having approached this Court contending that there is abuse of process, since the cheque was not issued by her and was issued only by accused No. 1 Mr. S.S. Ravishankar in his individual capacity and the prosecution cannot proceed, the contention of accused No. 3 was accepted by this Court and the criminal proceedings was quashed by the said order dated 17.3.2008, which has become final. The petitioners herein stand in the same footing as that of Smt. Sharada Balakrishna i.e., accused No. 3 who had filed Crl.P. No. 2834/2007. The respondent being a party to the said order and the order passed therein on 17.3.2008 having been allowed to become final, it is not open to the respondent to contend that the prosecution of the two petitioners should continue. Undisputedly, the allegations made against the petitioners are the same as one made in the complaint against Smt. Sharada Balakrishna, arraigned as accused No. 3.
Following the decision rendered in Crl.P. No. 2834/2007 dated 17.3.2008 and for the very reasons contained therein, this petition stands allowed and the criminal case insofar as the two petitioners are concerned, shall stand quashed.
It is made clear that the Trial Court can proceed with the case insofar as accused No. 1 is concerned.