Crl.M.C.No.7286 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **Crl.MC.No. 7286 of 2016 () ---------------------------** **CC 1743/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, TRIVANDRUM** **----** ## **PETITIONER(S)/ACCUSED:** **---------------------** **1. SONY GEORGE KURIAN AGED 55 YEARS, S/O. V.K KURIYEN KURIAN'S COTTAGE, THEKKEKARA P.O., MAVELIKARA 690 107** **2. MINI THOMAS, AGED 48 YEARS,** - **W/O. SONY GEORGE KURIAN KURIAN'S COTTAGE, THEKKEKARA P.O MAVELIKARA 690 107** ## **3. SANJU SONY KURIAN** - **AGED 24 YEARS,W/O. SONY GEORGE KURIAN, KURIAN'S HOTELS AND RESTAURANT, KATTANAM, KAYAMKULAM 690 503** ## **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** ## **RESPONDENT(S)/STATE & DEFACTO COMPLAINANT:** ## **-------------------------------------------** **1. STATE OF KERALA** - **REP BY THE SUB INSPECTOR OF POLICE THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM P.O 682 031** **2. ALEX VARGHESE, BAHRAIN CENTRE, KARAMCODU CHATHANNOOR P.O., KOLLAM 691 579.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALETTY R2 BY SRI.M.RAMESH CHANDER SENIOR ADVOCATE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 7286 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**ANNEXURE A: A TRUE COPY OF THE NOTICE DATED 18/9/2015**| |---| |**ISSUED BY THE SECOND RESPONDENT**| |**ANNEXURE B: A TRUE COPY OF THE REPLY NOTICE DATED**| |**12/10/2015**| |**ANNEXURE C: A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY**| |**THE 2ND RESPONDENT AGAINST PETITIONERS BEFORE**| |**JFCM COURT III,THIRUVANANTHAPURAM**| |**ANNEXURE D: A TRUE COPY OF THE CHEQUE DEFECT FILED ALONG**| |**WITH ANNEXURE C COMPLAINT**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL.**| |**//TRUE COPY//**| |**P.A. TO JUDGE**| ## **bp** ## ALEXANDER THOMAS, J. ----------------------------- Crl.M.C.No.7286 Of 2016 --------------------------------- Dated this the 30th day of January, 2017. ## O R D E R Petitioners seek to quash the impugned Anx-C complaint filed by the 2[nd] respondent alleging offence under Sec.138 of the Negotiable Instruments Act, against the 3 petitioners herein. The 2[nd] petitioner is the wife of the 1[st] petitioner and the 3[rd] petitioner is their son, who is stated to have been completed his studies and have secured a job. The 1[st] petitioner was earlier stated to be running a restaurant and a small hotel and the 2[nd] respondent was an inmate of the said hotel for about two months and during such residence he succeeded in establishing a close relationship with the 1[st] petitioner, it is averred. But that, the 2[nd] respondent managed to unlawfully obtain a cheque leaf out of a joint account maintained by the petitioners in State Bank of Travancore, Kurathikad Branch, and due to various troubles created by the 2[nd] respondent, an ultimatum was given by the 1[st] petitioner to vacate his premises even though the 2[nd] respondent intended to continue his residence in the 1[st] petitioner's premises. Thus the 2[nd] respondent was constrained to vacate 1[st] petitioner's premises on 13.5.2015 and that ::2:: Crl.M.C.No.7286 Of 2016 thereafter for wrecking vengeance on the petitioners, the said cheque leaf was manipulated as a cheque for Rs.2.5 Lakhs, which the 2nd respondent was presented and got it dishonoured and thereafter, issued Anx-A notice under Sec.138 of the Negotiable Instruments Act. Petitioners 1 & 2 have issued Anx-B reply notice explaining the actual facts. In spite of receipt of reply notice, the 2nd respondent went ahead and filed the impugned Anx-C complaint before the Judicial First Class Magistrate's Court-III, Thiruvananthapuram, alleging offence under Sec.138 of the Negotiable Instruments Act. Along with Anx-C complaint, the 2nd respondent had produced Anx-D cheque wherein even though the names of all the petitioners appear, only the signature alleged to have been put by the 1st petitioner finds a place. According to the petitioners, no offence would lie against petitioners. Admittedly petitioners 2 & 3 have not executed Anx-D cheque. That apart, it is averred that the prosecution would not lie as against the 1st petitioner as well. It is urged by the petitioners that the definite case of the 2nd respondent in Anx-A notice and Anx-C complaint is that the alleged transaction was between him and all the petitioners and the liability was that of all the petitioners towards him and it was for discharging the joint liability of the petitioners the cheque in question was issued. ::3:: Crl.M.C.No.7286 Of 2016 That the 2nd respondent has no case that he had any transaction with the 1st petitioner alone or that the first petitioner alone had any liability towards him for discharging which Anx-D cheque was executed, etc. Accordingly, it is contended by the petitioners that no prosecution will lie against any of the petitioners. But the court below had taken cognizance of the offence and issued process to all the 3 petitioners. It is in the light of these facts, that the instant Crl.M.C has been instituted by invoking the provisions under Sec.482 of the Code of Criminal Procedure with the following prayers: - “a. To quash all further proceedings pending as C.C.No.1743/2015 of the Judicial First Class Magistrate Court, No.III Thiruvananthapuram against the petitioners based on Annexure C private Complaint. - b. Pass such other Orders and to issue such other directions which are deemed expedient considering the facts and circumstances of the case.” 2. Heard Sri.Rinny Stephen Chamaparambil, learned counsel for the petitioner, Sri.Ramesh Chander, learned Senior Counsel appearing for R-2 and Sri.Saigi Jacob Palatty, learned Senior Prosecutor appearing for R-1 State. 3. It is not in dispute that even as per the case projected by the 2nd respondent-complainant in the impugned Anx-C complaint as well as Anx-D cheque that though the cheque was issued from a joint account said to be belonging to all the 3 petitioners, the said cheque was ::4:: Crl.M.C.No.7286 Of 2016 signed by the 1st petitioner alone and that petitioners 2 & 3 are not signatories to the said cheque. To this factual aspect, the 2nd respondent has no dispute. A perusal of the impugned Anx-A notice as well as Anx-B complaint would reveal that the 2nd respondent does not have a case that the cheque was issued in relation to any corporate liability as envisaged in Sec.141 of the Negotiable Instruments Act. 4. This Court in the case Devi v. Haridas reported in 2004 (3) KLT 355 has held that in the context of an offence under Sec.138 of the Negotiable Instruments Act, a person who has not signed the cheque though neverthless a joint account holder of the account which can be operated by anyone of the account holders, cannot be culpably liable for the offence under Sec.138 of the Negotiable Instruments Act. It has been held in paras 3 & 5 thereof that “it is evident from a plain reading of the Section that in order to be deemed to be liable under S.138 of the N.I. Act the cheque must be one drawn by the indictee on an account maintained by him. He becomes liable only if he, the drawer of the cheque, is given notice as insisted by S.138(b) of the N.I.Act and he, the drawer, does not make payment within the period stipulated under S.138(c) of the N.I.Act.” Therefore it was held therein that the conclusion appears to be inevitable that only a drawer of the cheque can be held liable under Sec.138 of the N.I. Act ::5:: Crl.M.C.No.7286 Of 2016 and the mere fact that the petitioner happens to be the spouse of the 1st accused and the account can be operated by either of them cannot, make the petitioner culpably liable under Sec.138 of the N.I.Act for a cheque issued by her husband to the complainant for the discharge of his liability. Further it was held that the mere fact that the account can be operated jointly by both the accused cannot by any stretch of imagination invite culpable liability under Sec.138 of the N.I.Act against the petitioner who was not the drawer and is only a joint account holder. 5. In the judgment in Aparna A.Shah v. Sheth Developers (P) Ltd. reported in (2013) 8 SCC 71, the Apex Court dealt with a case where the appellant representing that the appellant and her husband were land owners holding huge land and that it could be ideal for the development of a township project which could be developed by the respondent company and the respondent company agreed for development of the said land jointly with the appellant therein and her husband and the respondent company had issued a cheque for an amount of Rs.25 Crores in favour of the appellant therein and her husband. But for various reasons, the proposed joint venture did not materialise and it was claimed by the appellant therein that the whole amount of Rs. 25 Crores was ::6:: Crl.M.C.No.7286 Of 2016 spent in order to meet the requirements of the initial joint venture in the manner as requested by the respondent Company. Thereafter, on an understanding between the respondent and the appellant, a cheque of Rs.25 Crores was issued by the husband of the appellant from their joint account and the said cheque was dishonoured due to “insufficient funds” and thereupon the respondent company had instituted the impugned complaint therein for the offence under Sec.138 of the Negotiable Instruments Act. The appellant therein contended that though she was a joint account holder along with her husband in relation to the cheque in question, she cannot be prosecuted for the offence under Sec.138 of the Negotiable Instruments Act, as the cheque was sighed solely by her husband, etc. In para 13 of the judgment their Lordships of the Apex Court held that 'considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, it is only the “drawer” of the cheque who can be made liable for the penal action under the provisions of the NI Act and that strict interpretation is required to be given to penal statutes.' In para 18 of the said judgment, the Apex Court held that since the case is primarily concerned with criminal liability on account of dishonour of a cheque, it primarily falls on the drawer, if it is a company, then drawer ::7:: Crl.M.C.No.7286 Of 2016 company and is extended to the officers of the company and the normal rule in the cases involving criminal liability is against vicarious liability. Accordingly, it was held in para 27 of the said judgment that under Sec.138 of the Negotiable Instruments Act, it is only the drawer of the cheque who can be prosecuted and in the case on hand, admittedly, the appellant was not a drawer of the cheque and she has not signed the same and though the cheque contain the names of the appellant and her husband as joint account holders, the fact remains that her husband alone had put his signature, etc. In para 28 of the said decision, it was held that under Sec.138 of the Negotiable Instruments Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder and the said principle is an exception to Sec.141 of the Negotiable Instruments Act which would have no application in the case on hand, etc. Accordingly, the Apex Court had quashed the impugned complaint that was raised against the appellant therein, even though she was a joint account holder along with her husband and even though her name had occurred in the cheque of that account as the cheque was signed only by her husband, he alone can be prosecuted. ::8:: Crl.M.C.No.7286 Of 2016 6. Applying the said principles, it can be noted that though it is common ground that the cheque related to a joint account maintained by all the 3 petitioners, the cheque has been signed only by the 1st petitioner and the 2nd and 3rd petitioners have not signed the cheque and therefore, the drawer of the cheque in the instant case is only the 1st petitioner, even if it is assumed that all the averments in the complaint are correct. The complainant has no case that Sec.141 of the Negotiable Instruments Act relating to corporate liability has no application to the facts of this case. In this view of the matter it is only to be held that the complaint for the offence under Sec.138 of the Negotiable Instruments Act is not maintainable as against petitioners 2 & 3. This Court has proceeded on the premise that the averments in the complaint are correct and true for the purpose of consideration of the pleas under Sec.482 of the Cr.P.C. In this view of the matter it is only to be held that the impugned Anx-C complaint to the extent it relates to 2nd and 3rd petitioners will stand quashed. It is made clear that this Court has not expressed anything on the merits of the matter and all the contentions raised by the 1st petitioner regarding the merits of the case to the extent it relates to is involvement are all matters which are to be raised by him at the appropriate stage before the trial court. ::9:: Crl.M.C.No.7286 Of 2016 7. Sri.Rinny Stephen Chamaparambil, learned counsel for the petitioners submits that prosecution is carried at Thiruvananthapuram whereas the petitioners are based at Mavalikkara and that this Court may direct the learned Magistrate to grant personal exemption for the appearance of the 1st petitioner as envisaged in Se.205 of the Cr.P.C. On this aspect of the matter, it is for the 1st petitioner to make appropriate application seeking personal exemption as envisaged in Secs.205 and 317 of the Cr.P.C. In this regard it may be noted that this Court in the judgment in Reddy v. Excel Glasses Ltd. reported in 2010 (3) KLT SN 11 (C.No.14) has held that by virtue of the provisions in Secs.205 and 317 the Magistrate can allow an accused to make even the first appearance through a counsel and that even before execution of bail bond, for sufficient reasons, the accused is entitled to apply for exemptions from personal appearance. This Court had also placed reliance on the decision in Kar Industries Ltd. v. M/s.Bhiwani Denim & Apparels Ltd. & ors. reported in AIR 2001 SC 3625. It is for the petitioner to bring to the attention of the learned Magistrate about the rulings of this Court and it is for the learned Magistrate to consider the said plea made by the 1st petitioner in the light of legal principles regulating the field. Accordingly, the following orders are issued: ::10:: Crl.M.C.No.7286 Of 2016 - (i) The impugned Anx-C complaint to the extent it relates to the petitioners 2 & 3 will stand quashed. - (ii) All proceedings taken in pursuance of Anx-C complaint to the extent it relates to petitioners 2 & 3 will also remain rescinded and set aside and the complaint to the extent it relates to the 1st petitioner should go on in accordance with law. - (iii) This Court has not expressed anything on the merits of the matter and all the contentions urged by the 1[st] petitioner which are all matters to be raised before the trial court and it is for the trial court to consider those aspects in accordance with law. With these observations and directions, the Crl.M.C. stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-