Muhammed Thomman Valappil v. P.C. Thomas & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** ## **Crl.MC.No. 5540 of 2017 ()** **--------------------------CC. NO. 178/2016 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ......** ## **PETITIONER/2ND ACCUSED :** **-------------------------------------------** **MUHAMMED THOMMAN VALAPPIL, NALLAMKALLE BUS STOP, MANGGADE, WADAKKANCHERRY, THRISSUR-680 623.** **BY ADVS.SRI.P.S.ABDUL KAREEM, SRI.R.ABDUL AHAD.** ## **RESPONDENTS/COMPLAINANT & STATE :** **--------------------------------------------------------------** **1. P.C. THOMAS, PULIMOOTTIL HOUSE, NO.3/910 C, K.K. ROAD, CHEMBUMUKKU, THRIKKAKARA, ERNAKULAM, KOCHI-682 021.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.** **R1 BY ADVS. SRI.ANOOP.V.NAIR, SRI.V.K.SREEJITH, SRI.M.V.SURESH (KANNUR), SRI.V.MANOJKUMAR. R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-09-2017, ALONG WITH CRL.MC. NO.5556 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 5540 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A TRUE COPY OF THE COMPLAINT DATED 03.08.2014 IN C.C.NO.178 OF 2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **ALEXANDER THOMAS, J.** ## **---------------------------Crl.M.C.Nos.5540 & 5556 of 2017** ## **----------------------------** Dated this the 26[th] day of September, 2017 ## **O R D E R** The petitioner herein is accused no.2 for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.178 of 2016 and C.C.No.179 of 2016, both on the file of the Judicial First Class Magistrate Court, IV-Ernakulam, instituted on the basis of a complaint filed by the 1[st] respondent herein. There are two accused in these complaints. It is pointed out by both sides that accused no.1 happens to be the son of accused no.2 (petitioner). The petitioner seeks quashment of the impugned complaint on the ground that the dishonoured cheque in question involved in these two cases have not been drawn from an account maintained by the petitioner and that even as per the averment in the statutory demand notice sent by the complainant, it is clearly stated therein that the dishonoured cheque has been issued only from the account maintained by accused no.1. 2. Heard Sri.P.S.Abdul Kareem, learned counsel appearing for the petitioner and Sri.Anoop V.Nair, learned counsel appearing for R1 (complainant) and Sri.Jestin Mathew, learned Prosecutor Crl.M.C.Nos.5540 & 5556 of 2017 2 appearing for R2, State. 3. The impugned complaints have been produced as Annexure A in both these petitions. The subject matter of the complaint in Cr.M.C.No.5540 of 2017 is cheque no.516917 dated 10.05.2014 issued from the NRI account no.33138448000 maintained in the State Bank of India, Unichira Branch, Edappally whereas the subject matter of the complaint in Crl.M.C.No.5556 of 2017 is in relation to cheque no.516918 dated 03.07.2014 drawn from NRI account maintained in the very same Bank. Both the complaints have not made it clear as to whether the said cheque has been issued from the bank account of accused no.1 or accused no.2 or from a joint account of both the accused. The only averment in the complaint is to the effect that the said cheques concerned have been issued by the accused. This Court had called for the attested copies of the case papers from the trial court. On a perusal of the case papers it is seen that in the statutory demand notice dated 03.07.2014 sent by the complainant it is stated that the said cheque has been drawn by accused no.1. On a perusal of the cheques also it is also seen that there is only a single signatory to the cheques in question and the name of the drawer is printed in the cheque and is Crl.M.C.Nos.5540 & 5556 of 2017 3 mentioned as “Abu Thahir.T.M”, who is accused no.1. Thus it is evidently clear from the statutory demand notice as well as by the cheques produced by none other than the complainant, that the cheques in question have been drawn from an account maintained by accused no.1. This Court had also directed the State Bank of India, Unichira Branch, Edappally to furnish a report before this Court to give the details of the account holder pertaining to the above said account from which the dishonoured cheques have been issued. The Branch Manager of the State Bank of India, Unichira Branch, Edappally has furnished a report dated 23.08.17 to the Registry of this Court wherein it has been stated that the above said NRI account belongs to Sri.Abu Thahir.T.M (accused no.1) and that his address as per the bank records is Doha, Qatar and his local address is shown at Edappally, Ernakulam and further that cheque nos 516 917, 516 918 belongs to the above said NRI account of accused no.1 and that the said account is solely in the name of accused no.1 and that there is no joint holder and that the account is not held in the joint name of the petitioner herein. Thus from all these aspects, it is manifestly clear that the dishonoured cheques in question have not been issued from an account maintained by Crl.M.C.Nos.5540 & 5556 of 2017 4 accused no.2. In other words petitioner (accused no.2) is not the drawer of the above said cheques in question. There are no averments anywhere in the complaint to the effect that the accused no.2 could be implicated by virtue of the corporate vicarious liability as envisaged under Section 141 of the Negotiable Instruments Act. Therefore it is only to be held that the offence under Section 138 of the Negotiable Instruments Act has not attracted as against the petitioner (accused no.2) in both these cases. 4. Accordingly, it is ordered in the interest of justice that the complaints in C.C.No.178 of 2016 and C.C.No.179 of 2016 on the file of the Judicial First Class Magistrate Court IV, Ernakulam to the limited extent it is directed against the petitioner (accused no.2) will stand quashed. However, it is made clear that the trial court could proceed with the complaint as against accused no.1, in accordance with law. 5. Sri.Anoop.V.Nair, learned counsel appearing for the 1[st] respondent (complainant) would submit that the complainant has a strong case that both the accused have committed the offence of cheating and some other related offences in the transaction in question etc. and that the complainant has been now advised to Crl.M.C.Nos.5540 & 5556 of 2017 5 proceed as against both the accused including petitioner herein for those other offences, in appropriate criminal proceedings. It is made clear that the only point considered and decided by this Court in the present proceedings is only as to whether the technical offence under Section 138 of the Negotiable Instruments Act has been attracted as against the petitioner (Accused no.2). If the complainant has a case that both the accused including the petitioner has committed some other offences in the above said transactions, it is for him to work out his remedies strictly in accordance with law. Nothing in this judgment shall in any manner preclude the parties concerned from raising their appropriate contentions in such appropriate proceedings. 6. Sri.Anoop V.Nair, learned counsel appearing for R1 (complainant) would also point out that the present complaints have been instituted as early as in the year 2014 and that the case had to be frequently transferred and renumbered, on account of the judgment of the Apex Court rendered in **Dasrath Rupsingh Rathod** v **. State of Maharashtra and others** reported in **2014(9) SCC 129** as well as on account of the subsequent changes made effective from 15.06.2015 and that Crl.M.C.Nos.5540 & 5556 of 2017 6 this Court may direct the trial court to ensure that the trial is completed without any further delay. It is pointed out that accused no.1 has not so far been served with summons as he is reportedly abroad. 7. Having regard to the aspect that the complaints have been instituted as early as in the year 2014 and also having regard to the provisions contained in Sec.143(3) of the NI Act, that every trial should be conducted expeditiously and may be endeavored to complete it within 6 months etc., it is ordered in the interest of justice that the trial court will take all possible steps to ensure that the trial as against accused no.1 in these complaints is completed within 4 months from the date of appearance of accused no.1. With these observations and directions the Criminal Miscellaneous Case stands finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** IAP