Jubairiya Salma v. State of Kerala and Kerala State Financial Enterprises Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** **Crl.MC.No.4245 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 731/2017 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM** ## **PETITIONER/5TH ACCUSED:** **JUBAIRIYA SALMA, AGED 40 YEARS DAUGHTER OF MR. V.P.ABOOBACKER, 'GREEWICH', MAJOR SANTHOSH ROAD, WEST NADAKKAV (PO), KOZHIKODE DISTRICT, PIN-673 011.** **BY ADVS.SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY SMT.SAVITHA GANAPATHIYATAN SRI.M.M.SHAJAHAN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682 031.** - **2 BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES LIMITED,** **KOTHAMANGALAM BRANCH, POONOLLY BUILDING, FIRST FLOOR, BASIL JUNCTION, KOTHAMANGALAM (PO), ERNAKULAM, PIN-686 691.** **BY ADV. SRI.SALIL NARAYANAN K.A., SC, KSFE LTD.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4245 of 2019** 2 ## O R D E R In the petition on hand, the proceedings in CC No.731/17 pending on the files of Judicial First Class Magistrate Court, Kothamangalam as against the 5[th] accused is sought to be quashed. CC No.731/17 is a prosecution launched by the 1[st] respondent against the petitioner and 12 other accused under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') alleging commission of offence by them under Section 138 N.I. Act. 2. The contention of Sri.Shaji Chirayath, the learned counsel for the petitioner was that by judgment of this Court dated 06.02.2019 in **Shibu K.P. and others v. State of Kerala and another** which has been reported in [2019(3) KHC 1], the proceedings in C.C.No.731/2017 as against accused Nos.3, 4, 7, 8, 9, 10, 11, 12 and 13 were quashed by another Bench of this Court and therefore, the petitioner herein, in view of the allegations as against him in the complaint being a person standing on the same footing as accused mentioned above, the **Crl.MC.No.4245 of 2019** 3 case against him is also liable to be quashed. Attention of this Court is also invited to Annexure A1 complaint to establish that the 5[th] accused stands on the same footing as the accused abovementioned. The 1[st] paragraph of Annexure A1 being relevant is extracted hereunder : “That No.1 among the accused is the Trust duly functioned in the address mentioned above; No.2 to 6 are the office bearers of the said Trust and No.7 to 13 are the trustees of the Trust. That No.2 to 13 are the responsible persons who actively involved in the day to day business and affairs of the said Trust. As per the decisions and the Resolution dated 13.10.2014 of No.1 among the accused, No.3 among the accused joined and conducted the 'Chitty under Chital No.03 in the Chitty bearing No.12/2012 of the complainant for and on behalf of No.1 among the accused. Further all the accused agreed to pay the installments in time without any fail. The accused No.3 auctioned the said Chitty on 17.10.2014 and he received the auctioned Chitty amount of Rs.36,25,000/- on 13.11.2014 for and on behalf of the accused No.1 with the consent from you all. But all the accused purposefully failed and evaded to pay the installments in time from 18.02.2016 onwards. Repeated demands from the complainant to pay the defaulted installments, the accused never cared to pay the defaulted installments and the chitty terminated on 17.11.2016.” **Crl.MC.No.4245 of 2019** 4 3. As per the averments as above, accused Nos.2 to 6 are office bearers of 1[st] accused trust namely Indira Gandhi Memorial Trust, Nellikuzhy P.O., Nellikuzhy, Kothamangalam and accused Nos. 7 to 13 are trustees of the said Trust. Accused Nos.2 to 13 are responsible persons who were actively involved in the day to day business of the trust and its affairs. As revealed from the extract above, based on the decision taken in a resolution dated 13.10.2014 of the 1[st] accused, the 3[rd] accused subscribed as Chittal No.3 for and on behalf of him in the Chitty bearing No.13/2012 conducted by the complainant. It was revealed that all the accused agreed to pay the instalment dues towards the chitty in time, without any failure. The chitty was auctioned by accused No.3 on 17.10.2014 and the chitty amount of Rs.36,25,000/- was received by him on 13.11.2014 for and on behalf of 1[st] accused with the consent of all others. The accused failed to pay the instalment dues from 18.02.2016 onwards. Despite repeated demands, the accused did not pay the defaulted instalments and the chitty was terminated on 17.11.2016. **Crl.MC.No.4245 of 2019** **==> picture [8 x 9] intentionally omitted <==** 4. The contention of Sri.Shaji Chirayath, the learned counsel for the petitioner was that in Annexure A1 complaint, specific allegations as against the petitioner, the 5[th] accused are lacking. According to him, it was alleged by the complainant that the 5[th] accused was responsible for the day to day affairs and management of 1[st] accused Trust. As per the allegation, the 5[th] accused was also a trustee of the 1[st] accused trust. It is contended by the learned counsel secondly that the Trust is not a juridic person or a legal entity as held by a learned judge of this Court in **Shibu K.P's** case (supra) and no prosecution under Section 138 will lie against the trustees invoking Section 141 N.I Act. 5. Sri.K.A.Salil Narayanan, the Standing Counsel for Kerala State Financial Enterprises Ltd., Kothamangalam Branch has contended that the allegations as against the petitioner and accused Nos.3,4,7,8,9,10,11,12 and 13 differ and therefore the dictum in **Shibu K.P** 's case (supra) will not bind the petitioner and is irrelevant in the context of the petition on hand. According to him, as disclosed from the averments in Annexure **Crl.MC.No.4245 of 2019** 6 A1 extracted supra, the role of the 5[th] accused, the petitioner herein in the transaction was that of an office bearer of the 1[st] respondent trust and averred as a responsible person having active involvement in the day to day business and affairs of the trust. It is contended by the learned counsel that the involvement of the petitioner, the 5[th] accused, being specifically averred in Annexure A1 complaint, the prosecution as against him is not liable to be quashed, relying on **Shibu K.P** 's case (supra). 6. The rival arguments put forth by the respective counsel were appreciated in the backdrop of the averments in Annexure A1 complaint. It is clear from the extract from Annexure A1 above, that the petitioner herein stands on the same footing as the accused, the prosecution as against whom stand quashed vide **Shibu K.P** 's case (supra). The petitioner was also a trustee as other persons, against whom the order dated 06.02.2019 was passed by this Court and reported as **Shibu K.P** 's case (supra). Since specific involvement of the petitioner herein is not indicated from Annexure A1 complaint and solely for the reason of being a trustee in the 1[st] accused **Crl.MC.No.4245 of 2019** 7 trust, the petitioner herein was dragged into the prosecution by the 1[st] respondent, this Court has no hesitation to hold that the dictum in **Shibu K.P** 's case (supra) will be applicable to the petitioner also. Therefore, the petitioner is not liable to be prosecuted for the offence under Section 138 N.I Act and Annexure A1 complaint as against him is vitiated. In the result, Crl.M.C stands allowed and Annexure A1 complaint and all further proceedings as against the petitioner, the 5[th] accused in Annexure A1, which formed the basis for registering CC No.731/17 on the files of Judicial First Class Magistrate Court, Kothamanagalam stands quashed forthwith. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb **Crl.MC.No.4245 of 2019** 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT IN CALENDAR CASE NO.731 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT AT KOTHAMANGALAM.** ## **ANNEXURE A2** **CERTIFIED COPY OF CHEQUE PRODUCED ALONG WITH ANNEXURE A1 IN CALENDAR CASE NO.731 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT AT KOTHAMANGALAM.** //TRUE COPY// P.S. TO JUDGE