Ameer Shah v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939** ## **Crl.MC.No. 3415 of 2017 ()** **--------------------------ST 6970/2015 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1,KOTTAYAM** **------------** **PETITIONER/ACCUSED: -------------------** **AMEER SHAH, AGED 35 YEARS,S/O SHAHUL HAMEED,ANISH MANZIL, NADUKKUNNU.P.O,PATHANAPURAM,KOLLAM DISTRICT, PIN-689695,PROPRIETOR,ZODIAC SILKS & SAREES, DOOR NO.II/259A,PATHANAPURAM,KOLLAM DISTRICT.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENTS/STATE,COMPLAINANT & THE NON PARTY:** **----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,PIN-682031.** **2. BINDU SAJI, PROPRIETRIX, M/S.KAMALIYA GARMENTS,LAKKATTOOR, KOTTAYAM.** **3. SHALLIO THOMAS KURIEN, S/O.OOMMAN KURIAN,KANJIRATHUMMOOTTIL HOUSE, NEDUMPARAMBU ROAD,PATHANAPURAM,KOLLAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SRI JESTIN MATHEW, R2 BY ADV. SRI.P.KURUVILLA JACOB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-07-2017, ALONG WITH CRMC. 3427/2017, CRMC. 3428/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **Crl.MC.No. 3415 of 2017 ()** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ----------------------ANNEXURE A-1 TRUE COPY OF THE PRIVATE COMPLAINT IN S.T.6970 OF 2015 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, KOTTAYAM FILED BY THE 2ND RESPONDENT ANNEXURE A-2 TRUE COPY OF THE LAWYER NOTICE DATED 3.11.2015 ISSUED BY THE 2ND RESPONDENT'S COUNSEL ADV.SEBASTIAN KURIAN OF KOTTAYAM TO THE PETITIONER ANNEXURE A-3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY THE PETITIONER FOR HAVING RECEIVED THE REGISTERED NOTICE. ANNEXURE A-4 TRUE COPY OF THE CHEQUE BEARING NO.571139 DATED 23.10.2015 ISSUED BY ZONE ZODIAC BOUTIQUE DRAWN ON STATE BANK OF INDIA,PATHANAPURAM BRANCH IN FAVOUR OF KAMELIYA GARMENTS ANNEXURE A-5 TRUE COPY OF THE LICENCE DATED 18.10.2014 ISSUED BY THE PATHANAPURAM GRAMA PANCHAYAT TO THE 3RD RESPONDENT ANNEXURE A-6 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 12.12.2014 ISSUED BY THE COMMERCIAL TAX OFFICER,COMMERCIAL TADX OFFICE,PUNALUR (ASSESSING AUTHORITY)TO THE 3RD RESPONDENT. ANNEXURE A-7 TRUE COPY OF THE LEASE DEED DATED 4.9.2014 EXECUTED BY AND BETWEEN THE 3RD RESPONDENT AND THE LAND LORD HAJEE B MOHAMMED HASHIM SAHIB,S/O.THE LATE BAVA SAHIB,PUTHEN BUNGALOW,MANCHALLOOR MURI,PATHANAPURAM VILLAGE,PATHANAPURAM TALUK,** **RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## **ALEXANDER THOMAS, J.** -----------------------------------------------------Crl.M.C.Nos.3415, 3427 & 3428 of 2017 -----------------------------------------------------Dated this the 11[th] day of July, 2017 ## _**O R D E R**_ The complaints involved in these cases are those alleging offence punishable under Section 138 of the Negotiable Instruments Act against the petitioner. In these three petitions, petitioner is the same person. These petitions are filed by the petitioner seeking quashment of the impugned criminal proceedings on the ground that the petitioner is not the drawer of the dishonoured cheques involved in each of these cases. Crl.M.C.No.3415 of 2017 arises out of S.T.No.6970 of 2015 on the file of the Judicial First Class Magistrate's Court-I, Kottayam, wherein he has been arrayed as the sole accused. In Crl.M.C.No.3427 of 2017 (arising out of S.T.No.1582 of 2015) and in Crl.M.C.No.3428 of 2017 (arising out of S.T.No.1583 of 2015). The latter two complaints are on the file of the Chief Judicial Magistrate's Court, Kollam, wherein he has been implicated as accused No.3. In the latter two petitions, there are three accused apart from the petitioner. In Crl.M.C.No.3415 of 2017, the petitioner has impleaded the complainant therein as respondent No.2. It is stated that R3 therein is the holder of the account from which the cheque has been issued. In the other two Crl.M.C.No.3415/17 & conn. : **:2::** petitions, the petitioner has impleaded the complainant therein as as respondent No.2 and accused Nos.1 and 2 as respondent Nos.3 and 4. The petitioner would submit that the necessary party in each of these petitions is only the respective complainant and that no reliefs are sought as against the other contesting respondents, one of which is stated to be the actual account holder and the others are the co-accused. 2. Notice has been duly served on the respondentcomplainants in all the three cases. Shri.M.Rajesh, Advocate, has taken notice for R2/complainant in Crl.M.C.Nos.3427 and 3428 of 2017 and Sri.P.Jacob Kuruvilla, Advocate, has taken notice for R2/complainant in Crl.M.C.No.3415 of 2017. Notice to the other unserved contesting respondents, who are not necessary parties, will stand dispensed with. 3. Heard Sri.C.S.Manu, learned counsel appearing for the petitioner/accused, Sri.Jestin Mathew, learned prosecutor appearing for the respondent/State, Sri.M.Rajesh, counsel for R2 in Crl.M.C.Nos.3427 and 3428 of 2017, and Sri.P.Jacob Kuruvilla, learned counsel appearing for R2/complainant in Crl.M.C.No.3415 of 2017. 4. It is too elementary to require any judicial authority to state the proposition that the offence punishable under Section 138 of the Crl.M.C.No.3415/17 & conn. : **:3::** Negotiable Instruments Act can be attracted only as against the drawer of the dishonoured cheque in question. The only exception to this proposition is the one envisaged for vicarious liability as conceived in Section 141 of the Negotiable Instruments Act which stipulates that where the drawer of the cheque is a body corporate like Company/partnership firm, etc. then, the drawer Company/partnership firm will be the principal offender and apart from that the persons in charge of and responsible for the affairs of the business of the Company/partnership firm, at the time of commission of the offence would also be implicated as co-accused. In the instant case, a mere perusal of Annexure-A1 complaint produced in these cases would disclose that the complainant has no case that the drawer of the cheque is a body corporate as envisaged in Section 141 of the Negotiable Instruments Act. The implicit premise in the complaint could be that the drawer of the dishonoured cheques in these cases is the sole proprietary concern. But, there are no clear and cogent indications to that effect in the averments in the complaint. But, that aspect of the matter need not detain the attention of this Court, in view of the specific ground urged by the petitioner. Though the petitioner has raised many grounds, it is not necessary for this Court to get into all those details, but to focus on the main contention urged by the petitioner's counsel which Crl.M.C.No.3415/17 & conn. : **:4::** is to the effect that the petitioner is not the drawer of the dishonoured cheques in all these three cases. In other words, the specific case of the petitioner is that the dishonoured cheques in question have not been issued from a Bank account maintained by the petitioner. 5. In order to ascertain the correctness of this factual assertion made by the petitioner, this Court had passed a common order dated 12.6.2017 in these cases, which reads as follows : “The complainant and the accused in the matters relating to Crl.M.C.Nos.3427 and 3428 of 2017 are the same persons, whereas in Crl.M.C.No.3415/2017, even though the accused is the same person, the complainant therein is a different person. The offence alleged in all these 3 cases is one under Sec.138 of the N.I. Act. 2. It is the specific case of the petitioner that the dishonoured cheques involved in all these three cases do not pertain to a bank account maintained by the petitioner. It is stated that the actual drawers in Crl.M.C.Nos.3427 and 3428 of 2017 is a proprietary concern (R-3 herein - M/s. Zodiac Silks [Zodiac Boutique], Pathanapuram) and that its proprietor is R-4 therein (one Sri.Shallio Kalarickal @ Shallio Thomas Kurien) and that the petitioner herein has nothing to do with those cheques, etc. It is also stated that the drawer of the cheque involved in Crl.M.C.No.3415/2017 is also M/s.Zodiac Silks [Zodiac Boutique], whereas the complaint in that case is given by one Smt.Bindu Saji, Proprietrix, M/s.Kamaliya Garments, Lakkattoor, Kottayam, etc. Going by the averments in the respective complaints, it is seen that all these cheques have been issued from the account maintained by the State Bank of India, Pathanapuram Branch. Crl.M.C.No.3415/17 & conn. : **:5::** - (i) The dishonoured cheques in relation to Crl.M.C.No. 3427/2017 are stated to be (1) cheque No.571098 dated 18.9.2015 for Rs.73,345/- and (2) cheque No.571099 dated 25.10.2015 for Rs. 1,73,345/-. - (ii) The dishonoured cheque involved in relation to Crl.M.C.No. 3428/ 2017 are (1) cheque No.571093 dated 27.8.2015 for Rs.50,000/-, (2) cheque No.571096 dated 30.8.2015 for Rs. 50,000/- and (3) cheque No.571097 dated 9.9.2015 for Rs.50,000/-. - (iii) The dishonoured cheque in relation to to Crl.M.C.No. 3415/2017 is cheque No.571139 dated 23.10.2015 for Rs.31,978/- which is said to be drawn from account No.34432241954. 3. If, as a matter of fact, the cheques in question are not from an account maintained by the petitioner, then no offence under Sec.138 of the N.I. Act will get attracted and so the entire impugned criminal proceedings initiated against the petitioner will be vitiated by illegality. In order to factually ascertain the correctness of these submissions of the petitioner, following directions are issued : The Registry will get a report from the State Bank of India, Pathanapuram Branch, Kollam district, as to whether the petitioner is the account holder in relation to each of the aforementioned cheques and as to the details of the account holder/s in respect of each of the cheques said to have been issued from the account concerned maintained with the State Bank of India, Pathanapuram Branch. Meticulous and precise details in that regard should be furnished by the State Bank of India, Pathanapuram branch, within 10 days from the date of receipt of a copy of this order. A copy of this order should also be furnished to State Bank of India, Pathanamthitta branch for perusal and immediate necessary action. Interim order will continue for a further period of one month from today.” Crl.M.C.No.3415/17 & conn. : **:6::** 6. As per the averments in the complaints, the dishonoured cheques in question involved in these cases have been issued from an account maintained with State Bank of India, Pathanapuram Branch. It is on this basis that this Court passed order dated 12.6.2017 whereby the State Bank of India, Pathanapuram Branch, has directed to submit a report before this Court as to whether the petitioner is the account holder in relation to each of the aforementioned cheques and as to the details of the account holder/s in respect of the cheques said to have been issued from the account concerned maintained by the State Bank of India, Pathanapuram Branch, etc. In compliance with the said directions, the Branch Manager of the State Bank of India, Pathanapuram Branch has submitted a report dated 10.7.2017 to the Registry of this Court, which reads as follows : “To 10.7.2017 Hon. Registrar (Judicial) High court of Kerala _Sir,_ _Ref: Your office letter dated 06.07.2017-Crl M.C.Nos.3415, 3427 and 3428/2017_ _As per your letter seeking information regarding the account holder in relation to dishonoured cheques, kindly find the below given details._ _1. The petitioner Mr.Ameer Shah S, Proprietor-Zodiac Silks and Sarees, is not the account holder in respect pf the dishonoured cheques-cheque No.571098, 571099, 571093, 571096, 571097 and 571139_ _2. Cheque No.571098, 571099, 571093, 571096, 571097 and_ Crl.M.C.No.3415/17 & conn. : **:7::** _571139 belongs to the account No.34432241954 and the account holder is M/s.Zodiac Boutique._ _For STATE BANK OF INDIA_ Branch Manager” So, it is crystal clear that the abovesaid dishonoured cheques involved in these three complaints have not been issued from an account maintained by the petitioner. In other words, the petitioner is not the drawer of the dishonoured cheques in question and so, it is clear like the day light that the petitioner cannot be said to have been committed any offence punishable under Section 138 of the Negotiable Instruments Act as alleged in these complaints. 7. Accordingly, this Court is of the firm view that the institution and continuation of the impugned criminal proceedings against the petitioner is nothing, but grave abuse of process of court. Before parting with these cases, this Court would invite the attention of the trial Magistracy involved in such cases about the repeated words of caution quashing given by the Apex Court and by various High Courts including this Court that the trial courts should be extremely cautious in taking cognizance and issuing summons and that they are judicially obliged to carefully analyse and scrutinise the complaints and to ascertain as to whether the allegations made in the complaint proceedings meet with Crl.M.C.No.3415/17 & conn. : **:8::** the basic ingredients in the offence, whether the concept of territorial jurisdiction is satisfied, etc. The decisions of the Superior Courts on this point are in legion. In one of the latest judgments in the case in _**Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and another**_ reported in _**AIR 2017 (SC) 2392 = 2017 (2) KLT SN 68 (C.No.96) (SC)**_ , their Lordships of the Supreme Court have held in paragraph 14 thereof as follows : _“Before parting with the case, we would like to sound a word of caution that the Magistrates who have been conferred with the power of taking cognizance and issuing summons are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned. This has to be treated as the primary judicial responsibility of the court issuing process.”_ 8. Taking note of the case as in the instant one, this Court would venture to suggest that in cases like this, if the trial courts have any doubts regarding the nature of the averments and allegations made in the complaint, then it may be only appropriate in the scheme of things, that an an effective inquiry as contemplated under Section 202 (2) of the Cr.P.C. is conducted, if there are no clear materials available after the conduct of the preliminary inquiry under Section 200 of the Cr.P.C. 9. Accordingly, it is ordered in the interest of justice that Crl.M.C.No.3415/17 & conn. : **:9::** S.T.No.6970 of 2015 on the file of the Judicial First Class Magistrate Court-I, Kottayam, in which the petitioner has been arrayed as the sole accused therein and all further proceedings taken in pursuance thereof will stand quashed. It is also ordered that the impugned complaint proceedings in S.T.Nos.1582 and 1583 of 2015, on the file of the Chief Judicial Magistrate’s Court, Kollam, wherein the petitioner has been implicated as accused No.3 therein, and all further proceedings taken in pursuance of those two complaints would also stand quashed to the extent the petitioner herein has been arrayed as accused No.3 therein. It is further made clear that those complaints in S.T.Nos.1582 and 1583 of 2015 to the extent it relates to the other accused therein would proceed further in accordance with law. With these observations and directions, these Crl.Miscellaneous Cases stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl Crl.M.C.No.3415/17 & conn. : **:10::** ## **ALEXANDER THOMAS, J.** -------------------------------------------------------Crl.M.C.Nos.3415, 3427 & 3428 of 2017 --------------------------------------------------------Dated this the 3[rd] day of July, 2017 _**O R D E R**_ It is submitted by Sri.M.Rajesh, Advocate, that he is taking notice for R2 in Crl.M.C.Nos.3427 and 3428 of 2017. The Registry shall Crl.M.C.No.3415/17 & conn. : **:11::** forthwith intimate the State Bank of India, Pathanapuram Branch, that they should furnish the report in strict compliance with this Court’s order dated 12.6.2017, within a week. List these matters on 11.7.2017 at 10:15 A.M. for orders. **ALEXANDER THOMAS JUDGE** csl