R. Raju v. Sari S. Nath & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934 Crl.MC.No. 2419 of 2006 ( ) -----------------------------------------CC.1025/2004 of ADDL.C.J.M.(E&O),ERNAKULAM PETITIONER(S)/2ND ACCUSED: ------------------------------------------------- R.RAJU, AGED 50 , S/O.KUMARAN, KUTTIANJILIKKAL HOUSE, CHANDIROOR P.O., ALAPPUZHA DISTRICT, FORMER PARTNER, FOUR BRITE ASSOCIATES, A.P./11/440-A, CHANDIROOR ALAPPUZHA DISTRICT. BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SMT.THANKOM.G ## RESPONDENT(S)/COMPLAINANT AND STATE: ------------------------------------------------------------------------ 1. SARI S.NATH, POWER OF ATTORNEY HOLDER, CHOICE INTER MODEL SERVICE, CHOICE HOUSE, COCHIN-15. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.V.J.MATHEW (SR.) BY ADV. SRI.BIJISH B.TOM BY ADV. SRI.VIPIN P.VARGHESE R2 BY PUBLIC PROSECUTOR SMT. LOWSY A. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## Crl.MC.No. 2419 of 2006 ( ) ## APPENDIX ## PETITIONER'S ANNEXURES: - A1 COPY OF THE COMPLAINT IN C.C.NO.1430/1999 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, (ECONOMIC OFFENCE), ERNAKULAM. - A2 COPY OF THE JUDGMENT DATED 29.11.2004 IN C.C.NO.1430/1999 ON THE FILE OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCE), ERNAKULAM. - A3 COPY OF THE JUDGMENT DATED 26.05.2005 IN CRL.APPEAL NO.75/2005 ON THE FILES OF SESSIONS COURT, ERNAKULAM. ## RESPONDENTS' ANNEXURES: ## NIL ## //TRUE COPY// P.A. TO JUDGE DSV/- ## **“CR”** **P.S.GOPINATHAN, J. ---------------------------------------Crl.M.C.NO. 2419 OF 2006 ---------------------------------------Dated this the 10[th] day of August, 2012** ## **O R D E R** This is a petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.), filed by the 2[nd] accused in C. C. No. 1025/2004 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. The first respondent herein filed Annexure A1 complaint against M/s. Four Brite Associates represented by its Managing Partner and three other partners. In Annexure A1, the petitioner was the 4[th ] accused. Since the petitioner and the 3[rd] accused did not turn up in spite of the service of the process the case against the 1[st] and 2[nd] accused were split up and tried. The case against the petitioner and the third accused were renumbered as above with the third accused as the 1[st] accused. Crl.M.C.NO. 2419 OF 2006 2 After trial, by Annexure 2, the trial court arrived at a finding of guilty as against the first and 2[nd] accused. Assailing the above conviction and sentence Crl.Appeal 75/2005 was preferred. While partly allowing the appeal, the 2[nd] accused was acquitted for the reason that there is no pleading and evidence to show that the 2[nd] accused, who was one of the partner, was any way responsible for the conduct or the affairs of the firm. 2. Now by this petition, the petitioner seeks to quash Annexure A1 complaint against the petitioner with a plea that there is no averment in the complaint that the petitioner, who is one of the partners, is responsible for the affairs or the conduct of the business of the firm and therefore no prosecution is sustainable against the petitioner. Crl.M.C.NO. 2419 OF 2006 3 3. In support of the arguments, the learned counsel for the revision petitioner would rely upon the decisions reported in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another[(2010) 3 SCC 330] and Anita Malhotra v. Apparel Export Promotion Council and Another [(2012) 1 SCC 520]. 4. I have carefully, gone through the averments in Annexure A1 complaint. There is only vague statement that the petitioner and 1[st] accused are partners of the firm. There is no specific mention that the petitioner is responsible for the conduct or the affairs of the business of the firm. It is not in dispute that the petitioner or the 1[st] accused are not signatories to the cheque, basing upon which the prosecution was launched. In Anita Malhotra's case Crl.M.C.NO. 2419 OF 2006 4 (Supra) referring to the National Small Industries Corpn. Ltd.'s case, at paragraph 22 held as follows: “ **22.** This Court has repeatedly held that in case of a Director, the complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused company for conduct of it business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient.” In the light of the decisions of the Apex court and in the absence of the pleadings in the complaint regarding the responsibility of the petitioner and 1[st] accused for the affairs or the conduct of the business of the firm and in the circumstance that the petitioner and 1[st] accused are not signatories to the cheque, I find that the prosecution against the petitioner is not at all sustainable, since there is no Crl.M.C.NO. 2419 OF 2006 5 specific pleading as contemplated under Section 141 of the Negotiable Instruments Act to connect the petitioner and the 1[st] accused to the offence alleged. The prosecution is liable to be interfered under Section 482 of the Code of Criminal Procedure. Otherwise, result would be abuse of the process. In the result, this petition is allowed. The complaint and consequential proceedings thereon initiated against the petitioner would stand quashed. Since the prosecution against the 1[st] accused is also on identical pleadings, the case against him also would stand quashed. ## Sd/- **P.S.GOPINATHAN JUDGE** //TRUE COPY// P.A. TO JUDGE DSV/- # Crl.M.C.NO. 2419 OF 2006 6