Kerala High Court
John Zacharia vs James V.J on 2 April, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:33124
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 10006 OF 2023
ST NO.2057 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KANJIRAPPALLY
PETITIONERS/4TH ACCUSED:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN,
ADVOCATE & NOTARY, KURUP CHAMBERS,
COLLECTORATE P.O, KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
P.A.REJIMON
SAJEEV JOHN T.
NIKITA NAIR C.S.
RESPONDENTS/COMPLAINANT & STATE:
1 JAMES V.J,
AGED 61 YEARS
S/O JOSEPH V.P, VELLAPALLIL HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV.PUSHPALATHA M.K.
SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH Crl.MC.4662/2023, 5085/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 4662 OF 2023
ST NO.2474 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB
ATHUL V. VADAKKEDOM
PUSHPALATHA M.K. (SENIOR PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.04.2025, ALONG WITH Crl.MC.5085/2023, 6339/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 5085 OF 2023
IN ST NO.913 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
P.A.REJIMON
BIJO THOMAS GEORGE
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
M.C.ASHI(PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 6339 OF 2023
IN ST NO.2214 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
M.C. ASHI (PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 6367 OF 2023
IN ST NO.3165 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 JAMES V J,
AGED 61 YEARS
S/O JOSEPH V.P,
VELLAPALLIL HOUSE, KOORALI P.O,
ELANGULAM, KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV. M.C. ASHI,
PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.04.2025, ALONG WITH Crl.MC.10006/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:6:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 6368 OF 2023
ST NO.202 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 ANSON THOMAS ,
AGED 49 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
PUSHPALATHA M.K. (SENIOR PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 6378 OF 2023
IN ST NO.3200 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT & STATE:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS, ALUNKALKAROTT (KURISUMMOOTTIL)
PONKUNNAM P.O, NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
PUSHPALATHA M.K., (SENIOR PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:8:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 8483 OF 2023
IN ST NO.1180 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/FOURTH ACCUSED:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN,
ADVOCATE & NOTARY, KURUP CHAMBERS,
COLLECTORATE P.O, KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT:
1 JAMES V.J,
AGED 61 YEARS
S/O JOSEPH V.P, VELLAPALLIL HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV. M.C. ASHI,
PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH Crl.MC.10006/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:9:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 8552 OF 2023
ST NO.2473 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KANJIRAPPALLY
PETITIONER/4TH ACCUSED:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
BIJO THOMAS GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS, ALUNKALKAROTT (KURISUMMOOTTIL)
PONKUNNAM P.O, NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
PUSHPALATHA M. K.(PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:10:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 10019 OF 2023
IN ST NO.2379 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 58 YEARS
S/O ULAHANNAN, ADVOCATE & NOTARY,
KURUP CHAMBERS, COLLECTORATE P.O,
KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
P.A.REJIMON
SAJEEV JOHN T.
NIKITA NAIR C.S.
RESPONDENTS/COMPLAINT & STATE:
1 ANSON THOMAS,
AGED 49 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
M.C. ASHI (PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:11:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.MC NO. 10288 OF 2024
ST NO.698 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KANJIRAPPALLY
PETITIONER/ACCUSED NO.4:
JOHN ZACHARIA,
AGED 59 YEARS
S/O ULAHANNAN,
ADVOCATE & NOTARY, KURUP CHAMBERS,
COLLECTORATE P.O, KOTTAYAM, PIN - 686002
BY ADVS.
JOSEPH GEORGE
P.A.REJIMON
NIKITA NAIR C.S.
VIVEKJOS PUTHUKULANGARA
MAHIMA MERINE REJI
SAJEEV JOHN T.
RESPONDENTS/COMPLAINANT:
1 ANSON THOMAS,
AGED 50 YEARS
S/O A.S THOMAS,
ALUNKALKAROTT (KURISUMMOOTTIL) PONKUNNAM P.O,
NOW RESIDING AT ALUNKALKAROTT HOUSE,
KOORALI P.O, ELANGULAM,
KOTTAYAM DISTRICT, PIN - 686522
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
PUSHPALATHA M.K. (SENIOR PUBLIC PROSECUTOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
ON 02.04.2025, ALONG WITH Crl.MC.4662/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:33124
Crl.M.C. No.10006 of 2023
and connected cases
-:12:-
ORDER
Dated this the 2nd day of April, 2025
These Criminal Miscellaneous Cases are filed by the 4 th
accused in S.T.Nos.2057/2021, 2474/2021, 913/2022, 2214/2022,
3165/2021, 202/2022, 3200/2022, 1180/2021, 2473/2021,
2379/2023 and 698/2023 pending on the files of the Judicial First
Class Magistrate Court-II, Kanjirappally. The cases originated from
the complaints filed by the first respondents alleging commission
of the offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short, 'the Act'). The averments in the
complaints are to the following effect;
The first accused, a company engaged in the
manufacture of paints had, for the purpose of augmenting its
business, borrowed money from the complainants namely, Anson
Thomas and James V. J., during the period 09.12.2018 to
06.08.2019. While so, Anson joined as a Director of the 1st
accused company from 22.03.2019 and resigned on 15.02.2020,
in terms of the agreement entered with the incumbent Directors
on 13.02.2020. In accordance with the terms of that agreement,
24 cheques totaling Rs.46,97,788/-, drawn on the account of the
2025:KER:33124
and connected cases
company, were issued in favour of Anson and 8 cheques, totalling
Rs.16,50,000/-, in favour of James. The said agreement dated
13.02.2020 was prepared and notarized by the petitioner in his
professional capacity as Advocate and Notary Public. Though the
petitioner himself became a full-time Director of the first accused
company on 18.02.2020, he retired from the Director Board on
22.03.2021. The cheques issued in favour of the complainants
were thereafter presented for collection and dishonored for
insufficiency of funds. Thereupon, notices under Section 138(b) of
the N.I.Act were issued and the accused having failed to pay the
amounts due under the cheques despite receipt of those notices,
the complaints were filed. The petitioner is seeking to get the
proceedings against him quashed on the premise that he was not
the Director of the first accused company, either at the time of
issuance of the cheques or when the cause of action arose after
expiry of 15 days from the date of issuance of the demand notice
under Section 138(b) of the Act.
2. Referring to the averments in the complaints, learned
counsel for the petitioner contended that his client's role, of
having prepared and notarized the agreement dated 13.03.2020,
cannot be a reason for prosecuting him under Section 138 of the
Act. It is pointed out that, even though the petitioner became a
2025:KER:33124
and connected cases
whole-time Director of the company from 18.02.2020 onwards, he
had retired on 22.03.2021 and cause of action for filing the
complaints arose only thereafter. Moreover, the petitioner is not a
signatory to the cheques nor was he in-charge of the affairs of the
company at any point of time.
3. The learned counsel for the first respondents argued
that the offence under Section 138 of the N.I. Act is constituted by
the conflation of acts like issuance of the cheque, its
presentation, dishonour and issuance of demand notice.
Therefore, the contention that only persons responsible for the
affairs of the company as on the date on which the cause of action
had arisen can be prosecuted, is unsustainable. In support of the
argument, reliance is placed on the decision of the Apex Court in
S. P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan
[2022 (6) KHC 215], with specific emphasis on paragraphs 27 to
30 therein. It is pointed out that, even as per the averments in
the complaints, which are the subject matter of Crl.M.C. Nos. 4662
of 2023, 8483 of 2023 and 8552 of 2023, the petitioner was a
Director of the first accused company as on the date of dishonor
of the cheques. Hence, the prayer for quashing the proceedings
cannot be allowed and the question whether the petitioner was
responsible for the conduct of the business of the 1 st accused
2025:KER:33124
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company at the relevant point of time has to be decided based on
evidence.
4. Indisputably, except in Crl.M.C.Nos. 4662 and 8552 of
2023, the petitioner was not the Director of the 1 st accused
company at the time of execution of the cheque, its dishonor,
issuance of notice or as on the day when the cause of action
arose. In Crl.M.C.No.8483 of 2023, arising from S.T.No.
1180/2021, the petitioner was a Director when one among the two
cheques mentioned in the complaint got dishonoured. Therefore,
except in the cases mentioned above, the petitioner cannot be
prosecuted with the aid of Section 141 of the N.I. Act. The law on
this point is well settled by the decisions of this Court in Kairali
Marketing and Processing Cooperative Society Ltd. and
Another v. Pullengadi Service Cooperative Society Ltd. and
Another [ILR 2006 (4) Ker. 697] and Achankunju P.C. v. House
of Tiles, Koothatukulam and Others [2017 (3) KHC 440].
5. Hence, Crl M.C.Nos.10006, 5085, 6339, 6367, 6368,
6378 and 10019 of 2023 & 10288 of 2024 are allowed and all
further proceedings in S.T.Nos. 2057/2021, 913/2022, 2214/2022,
3165/2021, 202/2022, 3200/2022, 2379/2023 and 698/2023
respectively, pending on the files of the Judicial First Class
Magistrate Court-II, Kanjirappally, as against the petitioner, are
2025:KER:33124
and connected cases
quashed.
6. As far as Crl.M.C. Nos.4662, 8483 and 8552 of 2023
are concerned, the learned counsel for the 1 st respondents is right
in his submission that the petitioner being a Director of the first
accused company as on the date of dishonor of the cheques, viz;
28.01.2021, 17.03.2021 and 06.03.2021 respectively, he can be
prosecuted for the offence under Section 138 with the aid of
Section 141 of the N.I. Act. The legal position in this regard is
succinctly laid down in S. P. Mani and Mohan Diary (supra),
paragraphs 27 to 30 of which reads as under;
"27. As for the requisite evidence, the burden
upon the prosecution would be discharged under sub-section
(1) when a person is proved to be in charge of and responsible
to the company in the conduct of its business and would shift
upon the accused to prove that he was ignorant or diligent, if
that be his defence; whereas under sub-section (2) the
prosecution would be required to allege and prove the
consent, connivance or neglect and holding of the office by the
accused. There is nothing to suggest that the same person
cannot be made to face the prosecution either under sub-
section (1) or sub-section (2) or both. A director or manager
can be arraigned and proved to be guilty as the person in
charge of and responsible to the company as well as the
director of the company who, as such, might have consented
to, connived at or been negligent in respect of the offence of
dishonour of cheque, be logically deduced that a person can
be arraigned in a complaint as the accused along with the
2025:KER:33124
and connected cases
company if it prima facie appears that he was in charge of and
responsible to the company for the conduct of its business,
although he may or may not be or may not have continued to
be a director or other officer of the company, as mentioned in
sub-section (2). It would be sufficient if the complaint indicates
that such person has been arraigned on the basis of
averments which disclose him or her to be the person in
charge of and responsible to the company in the conduct of its
business at the time the offence was committed. Evidently, a
person who signs the cheque or who has the authority to sign
the cheque for and on behalf of the company, regardless of his
office or capacity, can, prima facie, be assumed to be in
charge of and responsible to the company in the conduct of its
business. And, where such person is prosecuted, then, if it be
his defence that the offence was committed without his or her
knowledge or that he or she has exercised all due diligence to
prevent the commission of such offence, the burden to prove
that would be on him or her and can only be discharged at the
stage of evidence.
28. While dealing with a reference to resolve
the apparent conflict between the judgments of this Court in
the Municipal Corporation of Delhi v. Ram Kishan Rohtagi and
the U.P. Pollution Control Board v. Modi Distillery, in the
context of vicarious liability under the provisions of S.141 of
the NI Act, this Court in P. Rajarathinam v. State of
Maharashtra, pertinently observed as under:
"4. A bare reading of the provision mandates that some facts
must come on the record in order to figure as to who should
answer the charge ultimately. Necessarily, pre-charge
evidence assumes importance. The complainant will have to
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put his side of the case as given out in the complaint and the
persons summoned would have to put on the record all what is
material to extricate themselves out. In any case, the crucial
time would be when framing charge whereat a decision in that
respect would be required to be made by the Court. Presently,
it appears to us premature to be resolving the conflict and the
ratio deduced thereby, may turn out to be obiter. Therefore,
we think that we need not resolve such conflict at present and
leave it to the Court concerned to pass appropriate orders at
the time of framing of charge. In this manner, we dispose of
these appeals." [Emphasis supplied]
29. The seminal issue raised and requires to be settled in the
present case is one relating to a person liable to be proceeded
against under the provisions of sub-section (1) of S.141 for
being in-charge of and responsible to the company "at the
time the offence was committed". It would, therefore, be
important to find out the "time" when the offence under S.138
can be said to have been committed by the company. It is
common place that an offence means an aggregate of facts or
omissions which are punishable by law and, therefore, can
consist of several parts, each part being committed at
different time and place involving different persons. The
provisions of S.138 would require a series of acts of
commission and omission to happen before the offence of,
what may be loosely called "dishonour of cheque" can be
constituted for the purpose of prosecution and punishment. It
is held by the Supreme Court in K. Bhaskaran v. Sankaran
Vaidhyan Balan, that:
"14. The offence under S.138 of the Act can be completed only
with the concatenation of a number of acts. The following are
the acts which are components of the said offence: (1) drawing
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of the cheque, (2) presentation of the cheque to the bank, (3)
returning the cheque unpaid by the drawee bank., (4) giving
notice in writing to the drawer of the cheque demanding
payment of the cheque amount, (5) failure of the drawer to
make payment within 15 days of the receipt of the notice."
30. Different persons can be in-charge of the company when
each of the series of acts of commission and omission
essential to complete the commission of offence by the
company were being committed. To take an example, in the
case of a company, "A" might be in charge of the company at
the time of drawing the cheque, "B" might be in charge of the
company at the time of dishonour of cheque and "C" might be
in charge of the company at the time of failure to pay within
15 days of the receipt of the demand notice. In such a case,
the permissibility of prosecution of A, B and C reply or any of
them would advance the purpose of the provision and, if none
can be prosecuted or punished, it would frustrate the purpose
of the provisions of S.138 as well as S.141. The key to this
interpretation lies in the use of the phrase: "every person shall
be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly" as it occurs in
sub-section (1) of S.141 and the use of the phrase "provided
that nothing contained in this sub-section shall render any
person liable to punishment if he proves..." that occurs in the
first proviso. Every person who was in charge of and was
responsible to the company for the conduct of its business at
the time any of the components necessary for the commission
of the offence occurred may be "proceeded against", but may
not be "punished" If he succeeds in proving that the offence
was committed without his knowledge and despite his due
diligence; the burden of proving that remaining on him.
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Therefore, it also has to be held that the time of commission of
the offence of dishonour of cheque cannot be on the stroke of
a clock or during 15 days after the demand notice has to be
construed as the time when each of the acts of commission
and omission essential to constitute the offence was
committed. The word "every" points to the possibility of
plurality of responsible persons at the same point of time as
also to the possibility of a series of persons being in charge
when the sequence of events culminating into the commission
of offence by the company were taking place. As to what this
'relevant time' is, was a question that this Court was called to
answer, inter alia, in N. Rangachari v. Bharati Sanchar Nigam
Limited. In this case, Data Access, a company had issued two
cheques to the BSNL, which were duly presented, but were
dishonoured for insufficiency of funds. A complaint under
S.138 of the NI Act was filed. While the BSNL held the directors
liable, the appellant, a chairman in the company contended
that he being a nominated chairman and holding an Honorary
post in the Company, was never assigned with any of the
company's financial or other business activities. He was the
Chairman for name sake and was never entrusted with any job
or business or constituted a signing authority. Resolving the
issue of when the liability could be fastened, this Court said:
"In the case on hand, reading the complaint as a whole, it is
clear that the allegations in the complaint are that at the time
at which the two dishonoured cheques were issued by the
company, the appellant and another were the Directors of the
company and were in charge of the affairs of the company. It
is not proper to split hairs in reading the complaint so as to
come to a conclusion that the allegations as a whole are not
sufficient to show that at the relevant point of time the
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appellant and the other are not alleged to be persons in-
charge of the affairs of the company. Obviously, the complaint
refers to the point of time when the two cheques were issued,
their presentment, dishonour and failure to pay in spite of
notice of dishonour. [Emphasis supplied]" [Underline supplied]
The petitioner being a Director of the first accused
company as on the date of dishonor of the cheques in the above
three cases, it is for him to establish that he was not in charge of
the affairs of the company as on that date. In the result,
Crl.M.C. Nos.4662 of 2023, 8483 of 2023 and 8552 of 2023 are
dismissed.
Sd/-
V. G. ARUN
JUDGE
Jka
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APPENDIX OF CRL.MC 10006/2023
PETITIONER'S ANNEXURES
Annexure A-1 CERTIFIED COPY OF THE COMPLAINT IN S.T
NO: 2057/2021 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN ANSON THOMAS
AND M/S. FOTTON PAINTS PRIVATE LIMITED
Annexure A- 3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A- 4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A-1 TRUE PHOTOCOPY OF THE COMPLAINT IN S.T
NO:2474/2021 ON THE FILE OF THE COURT OF
JUDICIAL FIRST CLASS MAGISTRATE NO: II
KANJIRAPPALLY
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A-3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A-4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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and connected cases
PETITIONER'S ANNEXURES
Annexure A1 TRUE PHOTOCOPY OF THE COMPLAINT IN S.T
NO:913/2022 ON THE FILE OF THE COURT OF
JUDICIAL FIRST CLASS MAGISTRATE NO: II
KANJIRAPPALLY
Annexure A2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A1 THE TRUE PHOTOCOPY OF THE COMPLAINT IN
S.T NO: 2214/2022 ON THE FILE OF THE
COURT OF JUDICIAL FIRST CLASS MAGISTRATE
NO: II KANJIRAPPALLY
Annexure A2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A3 THE TRUE PHOTOCOPY OF FORM NO: DIR-12 OF
M/S FOTTON PAINTS PRIVATE LIMITED DATED
18-02-2020
Annexure A4 THE TRUE PHOTOCOPY OF FORM NO: DIR-12 OF
M/S FOTTON PAINTS PRIVATE LIMITED DATED
22-03-2021
Annexure A5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A1 TRUE PHOTOCOPY OF THE COMPLAINT IN S.T
NO: 3165/2021 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN ANSON THOMAS
AND M/S. FOTTON PAINTS PRIVATE LIMITED
Annexure A3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A1 THE TRUE PHOTOCOPY OF THE COMPLAINT IN
S.T NO:202/2022 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A1 THE TRUE PHOTOCOPY OF THE COMPLAINT IN
S.T NO:3200/2022 ON THE FILE OF THE
COURT OF JUDICIAL FIRST CLASS MAGISTRATE
NO: II KANJIRAPPALLY
Annexure A2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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PETITIONER'S ANNEXURES
Annexure A-1 TRUE PHOTOCOPY OF THE COMPLAINT IN S.T
NO: 1180/2021 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN ANSON THOMAS
AND M/S. FOTTON PAINTS PRIVATE LIMITED
Annexure A-3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A-4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
2025:KER:33124
and connected cases
PETITIONER'S ANNEXURES
Annexure A-1 TRUE PHOTOCOPY OF THE COMPLAINT IN S.T
NO: 2473/2021 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A-3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A-4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
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APPENDIX OF CRL.MC 10019/2023
PETITIONER'S ANNEXURES
Annexure A-1 CERTIFIED COPY OF THE COMPLAINT IN S.T
NO: 2379/2023 ON THE FILE OF THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE NO:
II KANJIRAPPALLY
Annexure A-1 LEGIBLE COPY OF ANNEXURE A-1
Legibile copy
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A-3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A-4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
2025:KER:33124
and connected cases
APPENDIX OF CRL.MC 10288/2024
PETITIONER'S ANNEXURES
Annexure A-1 CERTIFIED COPY OF THE COMPLAINT IN S.T
NO: 698/2023 ON THE FILE OF THE COURT OF
JUDICIAL FIRST CLASS MAGISTRATE NO: II
KANJIRAPPALLY
Annexure A-2 TRUE PHOTOCOPY OF THE AGREEMENT DATED
13-02-2020 EXECUTED BETWEEN THE
COMPLAINANT AND M/S. FOTTON PAINTS
PRIVATE LIMITED
Annexure A-3 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 18-
02-2020
Annexure A-4 TRUE PHOTOCOPY OF FORM NO: DIR-12 OF M/S
FOTTON PAINTS PRIVATE LIMITED DATED 22-
03-2021
Annexure A-5 THE COMPANY MASTER DATA OF M/S FOTTON
PAINTS PRIVATE LIMITED
