Carmalities of Mary Immaculate, Province of St. Joseph, Thiruvananthapuram v. Benny Varghese and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940** **Crl.M.C.No. 6858 of 2018** **IN ST 3735/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS MAGISTRATE COURT I, CHANGANACHERRY** **PETITIONER:ACCUSED NO.S 1 AND 3 TO 12** **1 THE CARMALITIES OF MARY IMMACULATE, PROVINCE OF ST.JOSEPH, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROVINCIAL FR.SEBASTIAN CHAMATHARA CMI, CMI PROVINCIAL HOUSE, THIRUVALLAM P.O., THIRUVANANTHAPURAM, PIN - 695 027.** **2. FR.LUKA KOLLAMPARAMBIL CMI, CMI MALARNILAYAM, PILANKALAI, MULAGUMMOODU P.O, KANAYAKUMARI (DT) PIN 629 167** **3. FR.SONY SEBASTIAN (PALATHRA) CMI, CMI PROVINCIAL HOUSE, THIRUVALLAM P.O, THIRUVANANTHAPURAM. PIN-695 027.** **4. FR.SEBASTIAN ATTICHIRA CMI, S.H.MONASTERY, CHETHIPUZHA, KURISUMMODU P.O, CHANGANACHERRY, KOTTAYAM. PIN-686 104** **5. FR.JAMES MULLASSERY CMI, K.E.RESIDENCE, MANNANAM P.O, KOTTAYAM PIN-686 561** **6. FR.CHACKO AKKATHARA CMI, CHAVARA BHAVAN, MUZHAKODE ARUMANAI P.O, KANYAKUMARI-629 151** **7. FR. ROBIN ANANDAKKATTU CMI, CMI PROVINCIAL HOUSE, THIRUVALLLAM P.O, THIRUVANANTHAPURAM, PIN 695027** **8. FR.CYRIAC KOCHUPURA CMI, CMI PROVINCIAL HOUSE, THIRUVALLAM P.O, THIRUVANANTHAPURAM PIN 695 027** Crl.MC.No. 6858 of 2018 2 **9. FR. THOMAS CHOOLAPARAMBIL CMI, ST.JOSEPH MONASTERY, MANNANAM P.O KOTTAYAM, PIN 686 561 10. FR.CYRIAC MADATHIL CMI, FORMER PROVINCIAL OF ST.JOSEPH, THIRUVANATHAPUARAM, NOW RESIDING AT ST.THOMAS FORANE CHURCH, DHARMARAM COLLEGE P.O, BANGLORE, PIN 560 029 11. FR. THEKKEKUTTU JOSEPH (BIJU) CMI, FORMER DIRECTOR, ST. RITAS HOSPITAL, NALUKODY P.O CHANGANACHERRY, NOW RESIDING AT NAZARETH CARMEL MONASTERY, MUHAMMA, ALAPPUZHA PIN 688 525** **BY ADV. SMT.R.REMA** **RESPONDENTS/COMPLAINANT AND STATE:** - **1 BENNY VARGHESE S/O.VARGHESE, MAVELIL HOUSE, MALAKKUNNAM P.O., CHANGANACHERRY, KOTTAYAM, PIN - 686 535.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 BY ADVS. R1 BY SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.J.OM PRAKASH R2 BY SRI. C.M. KAMMAPPU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 6858 of 2018 3 ## **ORDER** Petitioners are accused Nos.1 and 3 to 12 in S.T. No.3735/2017 pending on the files of the Judicial First Class Magistrate Court-I, Changanassery. S.T.No.3735/2017 is a prosecution launched by the 1[st] respondent against them under Section 142 of the Negotiable Instruments Act, 1881, (for short 'the N.I Act') to prosecute the petitioners for commission of the offence punishable under Section 138 of the N.I Act. Altogether 13 accused were there in S.T. No.3735/2017, of which only 11 have approached this Court seeking to quash the proceedings initiated by the 1[st] respondent against them in S.T.No.3537/2017. 2. The facts of the case as revealed from Annexure I, a copy of the complaint produced along with this petition are to the effect that a cheque bearing No.486871 dated 7.7.2017 for a sum of Rs.37,41,147/- drawn by the 2[nd] accused from the account maintained by him with Catholic Syrian Bank Ltd. Nalukodi, Changanassery, Kottayam was issued by him to the complainant, the 1[st] respondent herein on 21.11.2016. The cheque was averred as issued towards a legally enforceable debt owed by the petitioners to the 1[st] respondent for the maintenance work such as electrical, plumbing, carpentry, Crl.MC.No. 6858 of 2018 4 mason and fabrication done by the latter at St.Ritas' Hospital, Nalukody under the management of the petitioners during the period 2013 - 2016. It is averred by the complainant in Annexure I complaint that the 2[nd] accused is the authorized signatory of the 1[st] accused and the cheque was issued towards a valuable consideration of discharge of a debt due from them. It is also averred that the 2[nd] accused has been duly appointed by the 1[st] accused, the Carmalities of Mary Immaculate. Accused Nos.2 to 13 were allegedly councillors/ administrators of CMI. 11[th] accused was arrayed as the former provincial of CMI who had assumed the office during the tenure of the 2[nd] accused. The 12[th] accused was arrayed as the Prefect/Director of St.Ritas' Hospital, Nalukody, and successor in office of the 2[nd] accused. The 13[th] accused was stated as the present Prefect/Director of the institution. As the averments stand in the complaint, the accused are jointly responsible for the day to day affairs of the Carmalites of Mary Immaculate, Province of St.Joseph, Thiruvananthapuram, and are also responsible for the conduct of the business of the same. 3. The cheques aforesaid was presented before the Bank and was bounced and returned for the reason “payment stopped by the drawer”. A memo to the effect was received Crl.MC.No. 6858 of 2018 5 from the Bank by the 1[st] respondent on 29.8.2017. Statutory Notice was issued to each of the accused on 20.9.2017 demanding payment of the amount covered by the cheque within 15 days. Accused Nos.1, 2, 4, 5, 6, 8, 9, 10 and 13 accepted the notice on 22.9.2017, accused Nos.3,7, and 11 accepted the notice on 25.9.2017 and the 12[th] accused on 24.9.2017. Eventhough notice was served on all the respondents, none of them filed reply. The payment demanded was also defaulted. In the said circumstances, within the time permitted by the statute, the prosecution in question was launched by the 1[st] respondent before the Judicial First Class Magistrate Court I, Chaganassery, which was taken cognizance of by the said court and taken on its file as S.T.No.3735/2017. At that juncture, the petitioners herein have approached this Court seeking to quash the complaint. 4. Smt.R.Rema, the learned counsel for the petitioners has contended that there is total want of allegation in the complaint that any amount is due from the petitioners and towards discharge of that, the cheque was issued. Not even an allegation is there in Annexure I private complaint that the petitioners are signatory to Annexure II cheque which formed the basis for launching the prosecution. Not even a plea was Crl.MC.No. 6858 of 2018 6 raised in Annexure 1 complaint that the cheque involved in the case has been issued by the petitioners from the account maintained by them. The learned counsel has also pointed to this Court that Carmalites of Mary Immaculate (CMI) is a congregation and not a company formed under the Companies Act and can be fitted within the term 'Association of group of persons' as per the explanation incorporated under Section 141 of N.I.Act. According to her, in the complaint an averment that Carmalites of Mary Immaculate (CMI) was an association of persons, is totally lacking and it suffers for that. According to her, the cheque in question was allegedly issued towards discharge of payment due to the 1[st] respondent for the maintenance works of electrical, plumbing as well as other works undertaken by him at St.Ritas' hospital. According to her, St.Ritas' Hospital being a legal entity, was controlled and managed by individuals and therefore, the first accused, the Carmalites of Mary Immaculate (CMI) cannot be made liable for any acts committed by them. She has also drawn the attention of this Court to Annexure II cheque, wherein the 2[nd] accused has put his signature in his capacity as the authorised signatory of the hospital namely St.Ritas' Hospital. Drawing the attention of this Court to those aspects, the learned counsel contended Crl.MC.No. 6858 of 2018 7 that the prosecution will not sustain against the petitioners. 5. Per contra, Sri.Omprakash, the learned counsel on behalf of the first respondent has contended that St.Ritas' Hospital is a hospital run and managed by the Carmalites of Mary Immaculate (CMI). According to him, the Carmalites of Mary Immaculate (CMI), is represented by its provincial Fr.Sebastian Chamathara CMI, CMI Provincial House, Thiruvallam, Thiruvananthapuram, who is the 1[st] accused in the case on hand. According to him, Carmalites of Mary Immaculate (CMI) being the institution wherefrom the 2[nd] accused has gained authority to act as the Director of the Hospital and therefore the name of the 1[st] accused shall not be exonerated from the liability and his name must be there in the complaint for the prosecution to be successful. The learned counsel has invited my attention to **Gunmala Sales Private Ltd. v. Annu Mehta [2014 (4) KLT 389 (SC)]** wherein, the Apex Court has issued certain directions to be observed by the courte while considering applications seeking discharge and quashing complaints. 6. The Apex Court has issued directions (a),(b)and(c) which are extracted hereinunder:- "a) Once in a complaint filed under S.138 read with S.141 of the N.I.Act the basic averment is Crl.MC.No. 6858 of 2018 8 made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director." "b) If a petition is filed under S.482 of the Code for quashing of such a complaint by the Director, the High court may, in the facts of a particular case, on a overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director" . "c) In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a director is merely an armtwisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such Crl.MC.No. 6858 of 2018 9 a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed." Therefore, relying upon clause 'b' extracted above, the learned counsel has canvassed that since the averment that the directors are responsible for the affairs of the first respondent, the power under Section 482 Cr.P.C cannot be invoked by this Court to quash the complaint. 7. As directed by the Apex court in direction (c) extracted above if controvertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances if not brought to the notice of the High Court to reach a conclusion that prosecuting a director is merely an arm twisting tactics, it is improper to ask him to stand the trial. It is held that asking him to stand the trial would amount to abuse of process of the court. Therefore, under direction 'c' extracted above, this Court can very well exercise the jurisdiction under Section 482 Cr.P.C, in a case if it is found from the averments and other materials available that the persons alleged as accused in the complaint cannot be made responsible for the execution of the cheque and the liability thereunder. In the backdrop of the direction a scrutiny of the pleadings in Annexure-I complaint was made. As already pointed out, the maintenance works of the kind referred to were done by the Crl.MC.No. 6858 of 2018 10 first respondent for the hospital namely "St.Ritas' Hospital". As per the averment in the complaint, St.Ritas' Hospital is a hospital coming under the control of the first accused. The first respondent/complainant has also produced Annexure-R1(b), which is an agreement executed among the second accused and the complainant in the complaint. A glance at the agreement would reveal that it was executed by the second accused in his capacity as the director of St.Ritas' Hospital, as appointed by the Provincial of Carmelites of Mary Immaculate, St.Joseph's Province, Thiruvananthapuram. It is further revealed therefrom that the second accused was appointed as director of the hospital and as such, he has been doing service for C.M.I. Towards the latter part of the agreement, it is also stated that the agreement was signed by him on behalf of C.M.I, the first petitioner herein and as director of the hospital. From the pleadings in the complaint and the recitals in Annexure-R1(b) agreement, as discussed above, the prima facie opinion reached is that the first and second accused needs to face trial in the prosecution. 8. As far as accused Nos.3 to 12 are concerned, based on the allegations stand against them unimpeachable or incontrovertible evidence are not liable to be adduced by the Crl.MC.No. 6858 of 2018 11 complaint to establish their guilt under Section 138 N.I Act for want of pleadings to that effect in the complaint itself. Moreover, as the allegations itself reveal some had held the posts earlier to the date on which the work was allegedly undertaken by the 1[st] respondent and there is total want of plea that they were in charge of and responsible for the conduct of the business of St.Ritas' Hospital run by the congregation 'the Carmalites of Mary Immaculate' as envisaged under Section 141 of the N.I Act. Averments are also lacking to indicate that those persons had issued the cheques for and on behalf of the congregation. Accused Nos.3 to 12 being totally unrelated to the execution of the cheques which formed the basis for the prosecution on hand, they are not liable to face trial. In the result, the Crl.M.C stands allowed in part. Annexure-I complaint as against petitioner Nos. 3 to 12 stands quashed forthwith. ## **Sd/-** ## **MARY JOSEPH** ## Ab/NAB ## **JUDGE** The final order dated 1.3.2019 in Crl.M.C.No.6858/2018 is corrected by incorporating “accused No.3 to 12” instead of “petitioners No.3 to 12” in the last sentence of paragraph 8 of the Judgment accordingly, as per order dated 26.6.2019 in Crl.MC.No. 6858 of 2018 12 Crl.M.A.No.1/2019 in Crl.M.C.No.6858/2018. Sd/Deputy Registrar Crl.MC.No. 6858 of 2018 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I THE CERTIFIED COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHANGANASSERY.** **ANNEXURE II TRUE COPY OF THE CHEQUE DATED 07.07.2017. RESPONDENTS EXHIBITS:** **Ext.R1(a): COPY OF THE STATEMENT DATED 21.11.2016 EXT.R1(b): COPY OF THE AGREEMENT DATED 21.11.2016 EXT.R1(c): COPY OF THE NOTICE DATED 20.9.2017** **EXT.R1(D): COPY OF THE RELEVANT PAGES WITH RESPECT TO** **ST.RITA'S HOSPITAL** **//TRUE COPY//** **P A TO JUDGE**