Jose, S/O Iyyannan Chakkunny v Mukundapuram Taluk Beedi Tozhilali SarvaJanik Sahakarana Sangham Ltd. UR 884 and State of Kerala through the Public Prosecutor, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 Crl.L.P..No. 543 of 2011 ------------------------------(Against the judgment dtd.7.1.2011 in CC.353/2009 of Judicial First Class Magistrate Court, CHALAKUDY) .................... PETITIONER/COMPLAINANT: ------------------------------------------ JOSE, S/O.IYYANNAM CHAKKUNNY, PARIYARAM VILLAGE, KANJIRAPILLY DESOM, THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S)/ACCUSED --------------------------------------- 1. MUKUNDAPURAM TALUK BEEDI THOZHILALI SARVAJANIK CO-OPERATIVE SOCIETY NO.UR 884, SITUATED AT MUKUNDAPURAM TALUK, EAST CHALAKUDY VILLAGE REPRESENTED BY ITS PRESIDENT KUNJUKUNJU, S/O.MANGADAN VARUNNI, POTTA VILLAGE AND POTTA DESOM. 2. STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.JAIBY PAUL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 543 of 2011** **----------------------------------------** Dated this the 15th day of July, 2011 ## **O R D E R** The petitioner herein is the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'), which was pending before the Judicial First Class Magistrate Court, Chalakudy. But, the learned Magistrate, by judgment dated 7.1.2011 in C.C.No.353/2009 acquitted the accused therein under Section 255(1) of the Cr.P.C. and therefore, the petitioner seeks leave of this Court under Section 378 (4) of the Cr.P.C. to file an appeal against the above order of acquittal. 2. I have heard Sri.T.N.Manoj, learned counsel appearing for the petitioner and I have also perused the judgment of the trial court. 3. Admittedly, Ext.P1 cheque pertains to the account maintained by the Mukundapuram Taluk Beedi Tozhilali SarvaJanik Sahakarana Sangham, of which the accused was the President. As the said cheque was dishonoured, the petitioner herein preferred the complaint alleging offence under Section 138 of the N.I.Act upon which the court took cognizance and instituted C.C.No.353 of 2009. During the trial, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P8 documents were produced. No evidence either CRL.L.P.No.543 of 2011 :-2-: oral or documentary was produced from the side of the defence. On conclusion, the trial court, on the strength of the decision of this Court reported in **Maheshkumar** v. **Taxi Drivers Co-operative Society** [2010(4) KLT 544], has found that the complainant could not succeed in establishing the offence punishable under Section 138 against the accused, who was one of the office bearers of the MTBTS Co-operative Society, without establishing the offence under Section 138 of the N.I.Act against the above co-operative society. Accordingly, the trial court found that the complainant failed to establish the offence punishable under Section 138 of the N.I.Act against the accused. Consequently, the accused is acquitted under Section 255(1) of Cr.P.C. 4. Sri.T.N.Manoj, learned counsel appearing for the petitioner, after inviting my attention to the cause title of the complaint filed by the complainant, strenuously submitted that the sole accused shown in the complaint is the society which is represented by the President and therefore, the finding of the trial court is not correct. The further submission of the learned counsel is that the President of the Society is made as accused so as to satisfy the statutory requirements under Section 141 of the N.I.Act and therefore, the learned Magistrate is not correct in acquitting the accused holding that the society is not made as an accused in the complaint. CRL.L.P.No.543 of 2011 :-3-: 5. I am unable to sustain the above contention. It is true that the accused Kunjukunju was once the President of the MTBT Co-operative Society and he might have issued the cheque also. But, that is not a ground to fix the penal liability, under Section 138 of the N.I.Act, against the said person, without impleading the society as an accused in the above complaint. Admittedly, the cheque in question i.e., Ext.P1 pertains to the account maintained by the society viz. MTBTS Co-operative Society and the transaction is between the complainant and the society. So, in order to attract Section 138 of the N.I.Act, it is incumbent upon the complainant to show that the cheque in question pertains to the account maintained by the accused. In the present case, the accused is shown as Kunjukunju, Aged 65, S/o.Mangadan Varu, Potta Village Potta Desom, the former President, for and on behalf of Mukundapuram Taluk Beedi Tozhilali SarvaJanik Sahakarana Sangham Ltd.UR 884 which is established and functioned in Kizhakke Chalakkudy Village,Mukundapuram Taluk. In the cause title of the judgment sought to be impugned, the accused is shown as Kunjukunju, Aged 65, S/o.Mangadan Varu, President, MTBTS Cooperative Society. It is the admitted case of the complainant that the transaction was between himself and the society, and the cheque in question pertains to the account maintained by the Society and therefore, necessarily, the accused must CRL.L.P.No.543 of 2011 :-4-: be the society, represented by either the Secretary or the President as the case may be, but in the complaint there is only one accused and the society as such is not made an accused. In this juncture, it is relevant to note that Section 141 of the N.I.Act is incorporated with specific object which can be gathered from the very caption of the section which says as “Offences by Companies”. Further subsection(1) of Section 141 further says that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (emphasis supplied) So, in the case of the office bearers of a society or a partnership firm or a company, the liability under Section 138 of the N.I.Act is attracted on the basis of the deeming provision contained under Section 141. Therefore, in order to fix the liability under Section 141 of the N.I.Act, it is absolutely inevitable to make the company or a partnership firm, as the case may be, as necessary accused in the complaint itself. In this juncture, the decision of this Court reported in **Maheshkumar's case** (cited supra) referred to by the learned Magistrate made the position very clear and accordingly, unless the society is held liable, the President and CRL.L.P.No.543 of 2011 **==> picture [21 x 9] intentionally omitted <==** Secretary who are referred to in Section 141 cannot be found guilty of offence under Section 138 of the N.I.Act. 6. Therefore, the law on the point is settled and the facts and circumstances involved in this case demand the impleadment of the society as the accused. But, the petitioner miserably failed to satisfy the above legal requirement and hence, the learned Magistrate is perfectly justified in acquitting the accused. Therefore, I find no scope for any interference with the order of acquittal recorded by the learned Magistrate and therefore, the petitioner is not entitled to get leave as sought for. In the result, this Criminal Leave Petition is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/ CRL.L.P.No.543 of 2011 :-6-: **V.K.MOHANAN, J** . CRL.R.P.No. 69 OF 2001 **ORDER** CRL.L.P.No.543 of 2011 :-7-: Dated:23.6.2011