* HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU +Crl.P. No.2494 of 2007 AND BATCH %18-06-2006 +Crl.P. No.2494 of 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2541 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2542 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2543 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2544 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2677 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2678 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2679 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2680 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2681 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.2682 OF 2007 #S. Koteswara Rao …….Petitioner And: $State of A.P., rep. by its PP and another ……Respondents !Counsel for the Petitioners: Sri V.V. Anil Kumar Counsel for the 1st respondent: Public Prosecutor Counsel for the 2nd respondent: ---- <Gist : >Head Note: ? Cases referred: 1.2010(1) ALT (Crl.) 217 2. 2010(1) ALT (Crl.)363(A.P) 3. 2006 (1) ALT (Crl.) 29 (S.C) HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.2494 OF 2007 AND BATCH DATE: 18.06.2010 CRIMINAL PETITION NO.2494 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2541 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2542 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2543 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2544 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2677 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2678 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2679 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2680 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2681 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.2682 OF 2007 Between: S. Koteswara Rao …….Petitioner And: State of A.P., rep. by its PP and another ……Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.2494 OF 2007 AND BATCH COMMAN ORDER: 1. The petitioner in Criminal Petition Nos.2494 of 2007, 2541 of 2007, 2542 of 2007, 2543 of 2007 and 2544 of 2007 is A-1 in Crime Nos.273 of 2001, 282, of 2001, 159 of 2002, 158 of 2008 and 283 of 2001 respectively and he is the petitioner in Criminal Petition Nos.2677 of 2007 to 2682 of 2007 in which he is A-3 in Crime Nos.74 of 2003, 75, of 2001, 76 of 2002, 77 of 2003, 78 of 2003 and 105 of 2003 respectively of Central Crime Station, Tirupati relating to offence punishable under Section 420 IPC. The 2nd respondents/complainants in these petitions filed private complaints in the Court of II Additional Judicial Magistrate of the First Class, Tirupati against the petitioner and others. 2. It is alleged that petitioner and other accused were are doing business in real estate and house plots under the name and style of M/s.Navya Chaitanya Housing Private Limited and that the accused gave wide publicity in newspapers about they starting a venture for allotting house plots of 50 ankanams (equivalent to 200 sq. yards) each in S. Nos.88, 95, 98, 100, 101, 102, 105, 106, 108 and 110 of Pudipatla village on easy installments for convenience of middle class people and that believing words of the accused the complainants joined as members in M/s. Navya Chaitanya Housing Private Limited, Tirupati and that each of the complainants paid huge amounts towards installments after originally paying lump sum amount in 1st installment and that the complainants paid at the rate of Rs.55,000/- for each plot towards its full value and paid Rs.7,000/- for each plot towards betterment charges and that the complainants have been demanding to register the plots allotted to them at the time of taking membership and that subsequently the accused changed their business name as Brunda Housing Private Limited and shifted their office from Prakasam Road to Rayalacheruvu Road and have been threatening the complainants saying that there is no Navya Chaitanya Housing Private Limited in existence, and that the accused also threatened the complainants with dire consequences intentionally and dishonestly to get wrongful gain to them and thereby the accused cheated the complainants. The complainants filed passbooks, receipts, etc., relating to payment of installments. The Magistrate referred the private complaints to Central Crime Station, Tirupati for investigation and report under Section 156(3) Cr.P.C; and the police registered those referred complaints as cases in Crimes, issued F.I.Rs and took up investigation. 3. It is contended by the petitioners’ counsel that the petitioner was Managing Director of M/s. Navya Chaitanya Housing Private Limited till 15.03.1997 and that he resigned as Managing Director and it was accepted by the Board of Directors of that company and that it was also notified to the Registrar of Companies who issued Form No.32 mentioning the said change and that the petitioner also gave publication in Andhra Jyothi Daily news paper about his resignation letter dated 10.03.1997 and that as on 05.11.1998 which is the date mentioned by the complainants for demanding for registered sale deeds, the petitioner was not in the company and that no specific acts were alleged against him to attract provisions of Section 420 IPC. The petitioner filed copy of Form No.32 issued by the Assistant Registrar of Companies, Andhra Pradesh, Hyderabad and it shows that A-2 resigned voluntarily to the post of Managing Director of M/s. Navya Chaitnayana Housing Private Limited as well as life time Directorship with effect from 15.03.1997. The petitioner also filed paper publication given by his Advocate to the above effect. 4. The petitioners’ counsel placed reliance on two reported decisions and one unreported decision of this Court in support of his contentions. I n Tumu Venkateswara Reddy v. State of A.P.,[1], this Court considered whether a mere partner who is not in-charge of day-to-day business or affairs of a partnership firm was liable for prosecution under the provisions of Drugs and Cosmetics Act, 1940. This Court held therein that such a partner who was not in-charge of day-to-day business or affairs of the firm cannot be prosecuted. In Shanmugha Sundera Raja v. State of A.P.,[2] the question before this Court was again liability of partners of a firm for offence under Section 138 of the Negotiable Instruments Act. This Court borrowing principle from S.M.S Pharmaceuticals Limited v. Neeta Bhalla[3] of the Supreme Court and taking aid of underlying principle covered by Section 141 of the Negotiable Instruments Act, held that other partners who are not Managing Partners of the firm cannot be mulcted with any penal liability under Section 138 of the Negotiable Instruments Act. Since the petitioner herein happened to be Managing Director of M/s. Navya Chaitanya Housing Private Limited, ratio of the above two reported decisions has no application herein. In unreported decision in Criminal Petition No.242 of 2007 dated 09.03.2007, this Court relieved the petitioner who was A-4 therein from being prosecuted on the ground that he was not a Managing Partner but was only a partner and that no specific allegations were made against him in the charge sheet even after investigation of the case. In Criminal Petition No.242 of 2007, A-2 in that case was the Managing Partner. The Managing Partner was not relieved from prosecution in that unreported decision. So the said decision is also not at all relevant herein and is not at all useful to the petitioner. 5. In these petitions investigation of all these crimes are still pending. Housing plots scheme in this venture of M/s. Navya Chaitanaya Housing Private Limited was started and the defacto-complainants/victims joined therein as members in May, 1995 and paid installments from June, 1995 onwards and completed payment of installments by 31.10.1998; and thereafter the accused collected betterment charges of Rs.7,000/- for each plot on 05.11.1998. Simply because the petitioner slipped away from the company by resigning his post of Managing Directorship on 15.03.1997 during currency of the scheme, the petitioner cannot absolve himself from criminal liability for starting the scheme, for luring the victims to join in the scheme and for collecting installments for about two years prior to his resignation. It is not as if any of the accused returned amounts of installments etc. collected from the subscribers/victims after closure of the company and changing name of the company into Brunda Housing Private Limited. It is for the investigation officer to collect statements of witnesses and intention of the accused at inception of the scheme. Good or bad intention of the accused at inception of the scheme can be gathered from their subsequent conduct. Taking allegations in the private complaints on their face value, this Court is of the opinion that there is element of dishonesty and fraud in starting the scheme and collecting installment amounts from the victims to the extent of total consideration of Rs.55,000/- per plot and Rs.7,000/- towards betterment charges per plot. This Court does not find any valid reasons to quash FIRs in all these crimes in the middle of investigation. 6. In the result, all the Criminal Petitions are dismissed. ___________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: 18.06.2010. Note: L.R. Copy to be marked (b/o)GK. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.2494 OF 2007 AND BATCH Date: 18.06.2010 Gk. [1] 2010(1) ALT (Crl.) 217 [2] 2010(1) ALT (Crl.)363(A.P) [3] 2006 (1) ALT (Crl.) 29 (S.C)