Srk Constructions/Srk Shelters ... vs George T.J
2021 Latest Caselaw 17382 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                 CRL.REV.PET NO. 463 OF 2021
    AGAINST THE ORDER/JUDGMENT IN ST 8/2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II KOTTAYAM, IN CMP. NO.693/2020 .
REVISION PETITIONERS/ACCUSED BEFORE THE COURT BELOW:

    1    SRK CONSTRUCTIONS/SRK SHELTERS PVT. LTD.,
         SRK SKYWINGS PROJECT OFFICE, 395/3, VIII-738-B, AKG ROAD,
         NEAR MARTHOMA SCHOOL, THENGODE P.O., KAKKANAD - 682
         030, KOCHI, KERALA, REPRESENTED BY ITS CHAIRMAN AND
         MANAGING DIRECTOR.

    2    K.RASHEED MALIK
         CHAIRMAN AND MANAGING DIRECTOR, SRK
         CONSTRUCTIONS/SRK SHELTERS PVT.LTD., SRK SKYWINGS
         PROJECT OFFICE, 395/3, VIII-738-B, AKG ROAD, NEAR
         MARTHOMA SCHOOL, THENGODE P.O., KAKKANAD - 682 030.

         BY ADVS.
         B.SAJEEV KUMAR
         THOMAS JOHN AMBOOKEN
         BLOSSOM MATHEW



RESPONDENTS/COMPLAINANT:

    1    GEORGE T.J,
         THUMBASSERY HOUSE, KOORAPAPADA P.O., KOTTAYAM DISTRICT
         REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
         M.P.SASEENDRAN NAIR, S/O.PURUSHOTHAMAN NAIR,
         MUNDAPLACKAL HOUSE, MADAPPADU, KOOROPPADA, KOTTAYAM
         - 686 502.

    2    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA, COCHIN - 682031.
 CRL.REV.PET NO. 463 OF 2021

                                      2


OTHER PRESENT:

              SMT. T.V NEEMA, SR PP




      THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 25.08.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.REV.PET NO. 463 OF 2021

                                       3




                                  ORDER

The Judicial First Class Magistrate-II, Kottayam has passed an

order in CMP No.693/2020 in S.T. No.8/2019 on 18.12.2020 .

C.M.P.No.693/2020 is a petition filed by the counsel for the accused

challenging the maintainability of a prosecution launched by the

respondent under Section 138 of the Negotiable Instruments Act,1881

against the first accused Company and the second accused Managing

Director. In the prosecution case the petitioner was made an accused

in his capacity as the signatory of the cheque issued by the Company.

The Company was wound up later under Section 433(e) and (f) of the

Companies Act 1956, as per orders of the High Court of Judicature at

Bombay passed in petition filed as No.974 of 2014 and an official

liquidator was appointed to deal with the assets/properties, income and

also the business of the company.

2. The petition challenging maintainability was filed by none

other than the complainant/respondent himself. According to him, the

proceedings against the accused in the prosecution in his capacity as

signatory of the cheque allegedly issued by the company, which stands CRL.REV.PET NO. 463 OF 2021

wound up, has lost its significance and therefore, it is a futile exercise to

pursue with further proceedings against the accused.

3. The respondent filed objection stating that the petition is not

legal. According to him, the provision under which, the petition was

filed, is not mentioned in the petition. It is contended that neither the

Negotiable Instruments Act, 1881 nor the Code of Criminal Procedure

1973 enables the second accused to file such a petition and there is no

express provision anywhere in the Statute to hear on maintainability in

a summons trial. It is contended that the petition is purely

experimental and devoid of merits and is only to be dismissed.

4. The court below had considered the rival contentions and

proceed to hold that the Company was wound up much later to the

commission of the offence and therefore the dictum laid down in

Francis K.P. & Others Vs. Fair Code Private Ltd & Others (ILR

2018 (2) KER 943) is applicable. Accordingly, it was held that the

prosecution is maintainable against the first accused Company and the

second accused Managing Director and the petition was dismissed.

Aggrieved by the dismissal of the petition, the petitioner has

approached this Court in the present proceedings. This Court is also of

the opinion that the prosecution under Section 138 of the Negotiable CRL.REV.PET NO. 463 OF 2021

Instruments Act is maintainable and winding up of the Company being

posterior to the transaction which lead to the launching of the

prosecution, would not have the impact of making the prosecution

non maintainable. Hence being no basis for the challenge, the revision is

liable to fail.

In the result, this Crl.Revison Petition is dismissed.

Sd/-

MARY JOSEPH JUDGE

al/-+