Anitha Varghese v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 Crl.MC.No. 2396 of 2016 ST 5477/2015 of J.M.F.C. - I, PARAVUR ***** ## PETITIONER(S)/3RD ACCUSED ANITHA VARGHESE W/O.T.K.VARGHESE, 8B GRAND CORT APARTMENTS, NEAR ST. THOMAS COLLEGE, TRICHUR. BY ADV.SRI.PEEYUS A.KOTTAM ***** THE NAME OF THE LOWER COURT “HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR” OCCURRING IN CRL.M.C.2396/16 IS CORRECTED AND SUBSTITUTED AS “HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT. KALAMASSERY” AS PER ORDER DATED 3.5.2016 IN CRL.M.A.4464/16 IN CRL.M.C.2396/16. ## RESPONDENT(S)/STATE & COMPLAINANT & 1ST AND 2ND ACCUSED: ## 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. ## 2. VINSOR N.V S/O.N.P.VARGHESE, NOTTATH (H), SUNDARAGIRI ROAD, KALAMASSERRY, ERNAKULAM, PROPRIETOR OF VINSOR ELECTIC WORKS, KALAMASERRY. 3. M/S TOUGHGLASS INDIA PVT. LTD. EDAYAR INDUSTRIAL AREA, BINANIPURAM.P.O., ERNAKULAM-683 502. 4. T.K.VARGHESE 8B GRAND CORT APARTMENTS, NEAR ST.THOMAS COLLEGE, TRICHUR. R2 BY ADV. SRI.LEO GEORGE R2 BY ADV. SRI.BINU JOHN R1 BY PUBLIC PROSECUTOR, SHRI B JAYSURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2396 of 2016 () APPENDIX ## PETITIONER(S)' EXHIBITS ANNEUXRE-A1 TRUE COPY OF THE COMPLAINT DATED 26.09.2012 BEARING NO.ST 5477/2015. ANNEXURE-A2 A PHOTO COPY OF THE JUDGMENT CITED AS 2014 KHC 229. RESPONDENTS EXHIBITS : NIL ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C No.2396 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this 26[th] day of July 2018 ## O R D E R The petitioner is the third accused in S.T. No.5477 of 2015 on the files of the court below. 2. The petitioner has filed this Crl.M.C. praying for quashing Annxure-A1 complaint and further proceedings against the petitioner in the above said case. 3. Heard. 4. Annexure-1 is a complaint filed by the 2[nd] respondent herein before the court below against the petitioner and two others alleging offence under Section Crl.M.C.2396/16 -: 2 :- 138 of the N.I. Act. 5. The learned counsel for the petitioner has submitted that since there is no averment in the complaint that the petitioner was in charge of and was responsible to the company for the conduct of the business of the first accused company, the prosecution against the petitioner is bad in law. 6. The averments in the complaint against the petitioner can be extracted hereunder:- “The complainant is the proprietor of M/s.Vinsor Electric Works North Kalamassery, Ernakulam, who was entrusted to carry on the electric work of the factory at Edayar owned and run by second and third accused on behalf of first accused company. There after the second accused issued cheque ## Crl.M.C.2396/16 -: 3 :- bearing No.10300869 dated 26.7.2012 for an amount of Rs.1,00,000/- (Rupees one lakh only) drawn on Federal Bank Ltd., Edappally branch, in favour of the complainant towards the work done by the complainant, leading him to believe that the cheque will be honored on presentation.” 7. The Apex Court in S.M.S. Pharmaceuticals Ltd., v. Neeta Bhalla [(2005) 8 SCC 89] held that it is necessary to specifically aver in the complaint under Section 141 that at the time the offence was committed, the person accused was in-charge of and responsible for the conduct of the business of the company. It was further held by the Apex Court that the said averment is an essential requirement of Section 141 and has to be made in the complaint and without the said averment being made in the complaint, the Crl.M.C.2396/16 -: 4 :- requirements of Section 141 cannot be said to be satisfied. 8. The Apex Court in National Small Industries Corporation Limited v. Harmeet Singh Paintal [(2010) 3 SCC 330], after referring to all earlier judgments of the Apex Court, summarised the legal position as follows:- “i. The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. i. Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. Crl.M.C.2396/16 -: 5 :- ii. Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. iii. Vicarious liability on the part of a person must be pleaded and proved and not inferred. iv. If the accused is a Managing Director or a Joint Managing Director, then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. v. If the accused is a Director or an officer of a Crl.M.C.2396/16 -: 6 :- company who signed the cheques on behalf of the company, then also it is not necessary to make specific averment in the complaint. vi. The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases.” In this case, there was not even an allegation that the petitioner was a Director of the company. However, the demand notice would show that the petitioner was the Director and the 2[nd] accused was the Managing Director of the company. The said aspect is not disputed by the petitioner also. 9. Apart from a vague allegation that the company at Crl.M.C.2396/16 -: 7 :- Edayar is owned and run by the petitioner and the other accused, there is no specific allegation that the petitioner was in charge of and was responsible for the conduct of the business of the company at the time of commission of the offence by the company. Although no particular form for making such averment is prescribed, it is not necessary to reproduce the language of Section 141 of the N.I. Act. However, a reading of the complaint must show that the substance of accusation discloses that the accused persons were in charge of and responsible for the conduct of the business of the company at the relevant time. In this case, there is absolutely no allegation that the petitioner was in charge of and was responsible for the conduct of the business of the firm during the relevant period. The Crl.M.C.2396/16 -: 8 :- petitioner also did not sign the cheque in question. In view of the above reasons, the prosecution against the petitioner cannot be sustained. In the result, this Crl.M.C. stands allowed and Annexure-A1 complaint and further proceedings against the petitioner in S.T. No.5477 of 2015 on the files of the court below stand quashed in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. sd ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/11.9.18 // True copy // PA to Judge_