Kerala High Court
Minu Rajan vs M.P.Shibu on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
CRL.MC NO. 5269 OF 2019
AGAINST THE ORDER/JUDGMENT IN ST 194/2016 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, ATTINGAL (TEMPORARY)
PETITIONERS/ACCUSED 5 & 7:
1 MINU RAJAN
AGED 38 YEARS,PUTHOOR HOUSE,
AKAMPADAM,KANJIRAKODE, WADAKKANCHERY,PIN-680 590
2 SUKITHA JAMES,
AGED 36 YEARS,PUTHOOR HOUSE,
AKAMPADAM ,KANJIRAKODE, WADAKKANCHERY,PIN-680 590
BY ADV NIREESH MATHEW
RESPONDENTS/COMPLAINANT & STATE:
1 M.P.SHIBU
AGED 49 YEARS,S/O. LATE M.MADHAVAN, NRI,
PANIKKANTE VILA VEEDU, KOONTHALLOOR,CHIRAYINKIL,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
B.ARAVINDAKSHAN, AGED 52 YEARS, S/O. LATE
BHASKARAN, GULF RETURNEE, VATTAVILA VEEDU,
KOONTHALLOOR, CHIRAYINKIL-695 104.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI-682 031
BY ADVS. SRI.G.SIVASANKAR
SRI.A.JANI(KOLLAM)
OTHER PRESENT:
PP SRI V S SREEJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
HEARING ON 06.07.2022, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.M.C. No.5269 of 2019
-:2:-
ORDER
Dated this the 6th day of July, 2022
This petition is filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioners
seeking to quash the complaint launched to prosecute them.
Petitioners are accused Nos.5 and 7 and S.T. No.194/2016, a
prosecution filed by the respondents alleging commission of an
offence under Section 138 of the Negotiable Instruments Act,
1881 (for short 'N.I. Act').
2. The allegation was that the 2nd accused visited the house
of the complainant on 19.01.2012 and obtained a loan of
Rs.50,000/- for the 1st accused firm. The 2nd accused issued him
a cheque dated 25.05.2012 on behalf of the 1 st accused firm
bearing No.DLB DA 001175 which was drawn from the account
maintained by the 1st accused with Dhanalekshmi Bank Limited,
Kumaranelloor branch. While issuing the cheque, the 2 nd accused
assured the complainant that the firm would deposit sufficient
money in the bank account of the firm to honour the cheque.
The cheque was presented for encashment but was dishonoured
Crl.M.C. No.5269 of 2019
for the reason 'account closed'. Thereafter by issuing statutory
notice as contemplated under N.I. Act, the prosecution in
question was launched by filing the complaint under Section 142
N.I. Act, copy of which is produced alongwith the petition on
hand as Annexure A.
3. It is contended by Sri.Nireesh Mathew, the learned
counsel for the petitioners that in Annexure A a specific averment
to attract the vicarious liability as contemplated under Section
141 N.I. Act is not there. According to him, to make the
petitioners liable for an offence punishable under Section 138
N.I. Act, complainant must incorporate an allegation in the
complaint that they were in charge of and responsible for the
conduct of the business of the company at the relevant time.
According to him, when allegations of the nature are not there in
the complaint (Annexure A) petitioners cannot be prosecuted on
it's basis for an offence punishable under Section 138 N.I. Act.
The learned counsel has relied on Dilip Hariramani v. Bank of
Baroda [2022 (3) KLT 373 (SC)] to rest his contentions.
4. Annexure A is read in full to find out it's sustainability in
the backdrop of the arguments advanced. Paragraph 4 and 11 of
Annexure A are reproduced hereunder :
Crl.M.C. No.5269 of 2019
"4. The other accused are known to be partners
engaged in the conduct of the business of the 1 st accused
firm as introduced by the 2nd accused and responsible to its
affairs."
"11. At the time of issuing of the cheque for the
legally enforceable debt to the complainant the 2 nd accused
was the managing partner administering the business of
the firm and other accused were partners engaged in the
conduct of the business of the 1 st accused firm and
responsible to its affairs."
5. Allegations envisaged under Section 141 N.I Act are
there in Annexure A to prima facie attract an offence under
Section 138 N.I.Act. Rest of the matters are for the proposed
trial to decide. Therefore the prayer of the petitioners to quash
Annexure A is not liable to be allowed in the above context.
In the result, Crl.M.C stands dismissed.
Sd/-
MARY JOSEPH,
JUDGE.
ttb
Crl.M.C. No.5269 of 2019
Crl.M.C. No.5269 of 2019
APPENDIX OF CRL.MC 5269/2019
PETITIONER ANNEXURES
ANNEXURE-A TRUE COPY OF THE COMPLIANT FILED BY THE
1ST RESPONDENT DATED 13.08.2012
Crl.M.C. No.5269 of 2019
APPENDIX OF CRL.MC 5269/2019
PETITIONERS' ANNEXURE :
ANNEXURE-A TRUE COPY OF THE COMPLIANT FILED BY THE
1ST RESPONDENT DATED 13.08.2012
