Kerala High Court
Rahul Antony Simon vs Sheminson Jack on 25 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.1898 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.MC NO. 1898 OF 2019
AGAINST CC NO.4976 OF 2017 ON THE FILE OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I.ACT CASES),
ERNAKULAM
PETITIONERS:
1 RAHUL ANTONY SIMON
S/O. SIMON JOHN, M/S. COMBINED FOODS PVT.
LTD, 28/3030, CHERUPARAMBATH ROAD,
KADAVANTHRA, ERNAKULAM-682 020
2 REMESH BABU
AGED 57 YEARS
S/O. LATE C.K. RAGHAVAN NAIR , AUTHORISED
SIGNATORY, M/S. COMBINED FOODS PVT. LTD,
28/3030, CHERUPARAMBATH ROAD, KADAVANTHRA,
ERNAKULAM-682 020
BY ADV. ABRAHAM JOHN
RESPONDENTS:
1 SHEMINSON JACK
VARIYATH HOUSE, MANJUMMEL P.O,
UDYOGAMANDAL-683 501
2 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
Crl.M.C. No.1898 of 2019
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BY ADV.
SRI.M.R.NANDAKUMAR
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 25.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.M.C. No.1898 of 2019
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.1898 of 2019
----------------------------------------------
Dated this the 25th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the
proceedings in C.C.No.4976/2017 on the file of the Judicial
First Class Magistrate Court (N.I. Act Cases), Ernakulam.
2. It is a prosecution initiated against the
petitioners by the 1st respondent alleging commission of
offence under Section 138 of the Negotiable Instruments
Act, 1881. The 1st petitioner is arrayed as the director of
the company and the 2nd petitioner is shown as the
authorised signatory of the Company. The allegation in
the complaint is that a godown belongs to the accused was
rented out to one TCI Supply Solutions and the
complainant mediated the transaction between the parties
and towards the brokerage of the same, the accused issued
a cheque for Rs.2,05,956/- of the State Bank of India,
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Udyogamandal. The cheque was presented and it was
dishonoured because the drawer stopped the payment.
Annexure-1 is the complaint. When the cheque was
dishonoured, Annexure-2 notice was issued calling upon
the petitioners to pay the value of the cheque. On receipt
of the cheque, the petitioners issued a reply narrating their
case. Annexure-3 is the reply notice. According to the
petitioners, the cheque in question was issued from the
account of the Company. Annexure-4 is the account
statement. It is also the case of the petitioners that the
entire transactions relating to the complaint is done by the
Company. The building given on rent belongs to the
Company and it was let out on behalf of the Company.
Annexure-5 is the rent deed executed by the Company
with M/s. TCI Supply Solutions. The contention of the
petitioners is that, without arraying the Company as a
party in the complaint, the prosecution against the
petitioners is unsustainable. Hence this Crl.M.C. is filed.
3. Heard the learned counsel appearing for the
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petitioners, the learned counsel appearing for the 1st
respondent and the learned Public Prosecutor.
4. This Court perused Annexure-1 complaint.
Admittedly, the complaint is filed against the Managing
Director, Director and the Authorised signatory. The
Company is not made as an accused in the complaint.
Admittedly, the cheque is issued from the account of the
Company which is clear from Annexure-4. This Court in
Moideen Kutty P. I. v. Abdul Rasheed V. [2023 KLT
OnLine 1693] observed that the complaint filed by the
complainant against the accused without arraying the firm
as an accused would not sustain, since the cheque belongs
to the firm. It will be better to extract the relevant portion
of the above judgment:
"16. On evaluation of the legal position, the
present complaint filed by the complainant against
the accused / revision petitioner without arraying
the firm as an accused would not sustain. Since
the cheque was one belonged to the firm, the
complainant should have arrayed the firm as an
accused and the directors, if any, by disclosing
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their complicity in detail so as to warrant conviction
and sentence provided under S.138 of the N.I.
Act."
5. In the light of the above dictum, I am of the
considered opinion that the prosecution against the
petitioners is unsustainable.
Upshot of the above discussion is that the prosecution
against the petitioners based on Annexure-1 complaint can
be quashed.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the petitioners in
C.C.No.4976/2017 on the file of the Judicial First Class
Magistrate Court (N.I. Act Cases), Ernakulam are quashed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
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PETITIONER ANNEXURES
ANNEXURE 1 A TRUE COPY OF THE COMPLAINT FILED
BY THE RESPONDENT.
ANNEXURE 2 A TRUE COPY OF THE DEMAND NOTICE
DATED 20.10.2017.
ANNEXURE 3 TRUE COPY OF THE REPLY NOTICE DATED
10.11.2017
ANNEXURE 4 A TRUE COPY OF THE ACCOUNT STATEMENT
PERTAINING TO THE PERIOD 8TH
SEPTEMBER TO 30TH OCTOBER 2017
ANNEXURE 5 A COPY OF THE RENT DEED EXECUTED BY
THE COMPANY WITH M/S. TCS SUPPLY
SOLUTIONS.
ANNEXURE 6 A TRUE COPY OF THE SUMMONS ISSUED TO
THE 1ST PETITIONER.
ANNEXURE 7 A TRUE COPY OF SUMMONS ISSUED TO THE
2ND PETITIONER.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
