Sajid Padiyath and Haseena v. State of Kerala and K.J.P Aggregates

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939** ## **Crl.MC.No. 6116 of 2013 ()** **--------------------------CMP. NO. 380/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY.** **.....** **PETITIONERS/ACCUSED NOS.3 & 4:** **-----------------------------------------------------** **1. SAJID PADIYATH, AGED 51, S/O. ABOOBACKER, PADIYATH HOUSE, P.B.K MAINA ROAD, VAZHAKKALA, ERNAKULAM- 682 021.** **2. HASEENA, AGED 47, W/O. SAJID PADIYATH, PADIYATH HOUSE, P.B.K MAINA ROAD, VAZHAKKALA, ERNAKULAM- 682 021.** **BY ADV. SRI.G.SREEKUMAR (CHELUR).** **RESPONDENTS/STATE OF KERALA AND THE COMPLAINANT:** **------------------------------------------------------------------------------------------** **1. THE STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **2. K.J. POULOSE, KIZHAKEKARUNAGAPILLIYIL HOUSE, PROPRIETOR, K.J.P AGGREGATES, MEEMAPARA P.O, PARIYARAMKARA, ERNAKULAM DISTRICT- 682 308.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY. R2 BY ADV. SRI.MVS.NAMBOOTHIRY.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 6116 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I. COPY OF THE PRIVATE COMPLAINT IN CMP NO.380 OF 2013 DATED 14.02.2013 ON THE FILE OF THE JFCM, KOLENCHERY FILED BY THE SECOND RESPONDENT HEREIN. ANNEXURE II. COPY OF THE CHEQUE ISSUED DATED 10.11.2012.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## ALEXANDER THOMAS, J. ----------------------------- Crl.M.C.No.6116 Of 2013 --------------------------------- Dated this the 11th day of October, 2017. ## O R D E R The petitioners herein are the accused Nos.3 & 4 in Anx.A-1 Crl.M.P.No.380/2013 on the file of the Judicial First Class Magistrate Court, Kolenchery, instituted on the basis of a complaint filed by R-2 herein. The alleged dishonoured cheque involved in this case is for Rs.1,16,949/-. The petitioners seek quashment of the impugned Anx.A-1 complaint to the extent it is directed against them on the ground that there are no proper and sufficient averments in the complaint that the petitioners were in charge of and responsible for the affairs of the drawer institution at the time of the commission of the offence or that the petitioners are the signatory to the dishonoured cheque in question, etc. According to the petitioners, they have severed the relation with the drawer institution way back in 2009 and the alleged dishonoured cheque is said to have been issued on 10.11.2012 and the dishonour is said to have taken place on 13.12.2012 and that at the time of the commission of the offence, the petitioners have no communication whatsoever with the alleged drawer of the cheque, etc. ::2:: Crl.M.C.No.6116 Of 2013 The prayer made in this Crl.M.C is as follows: “........................................ to quash Annexure I, which is the private complaint filed as C.M.P.No.380 or 2013 dated 14/2/2013 on the file of he JFCM, Kolenchery, in the interest of justice.” 2. The Office of the trial court concerned (Court of Judicial First Class Magistrate Court, Kolenchery, has now informed the Registry of this Court that Anx.A-1 complaint which was initially numbered as Crl.M.P.No.380/2013 was later re-numbered as S.T.No.903/2013 and pursuant to the judgment dated 1.8.2014 in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, the said complaint was returned to the complainant for re-presentation before the competent court on 23.10.2014 and that the case records were accordingly received by Smt.E.M.Sobhana, Advocate for the complainant, on 5.11.2014. That later, pursuant to the amendment made to the N.I. Act, made effective from 15.6.2015, the said complaint was again transferred to that court and accordingly the Judicial First Class Magistrate Court, Kolenchery, has re-numbered the complaint as S.T.No.3016/2015. That non bailable warrant was issued on 16.1.2017 and due to non-execution of warrant, show cause notice has been issued to the Station House Officer concerned on 30.10.2017. 3. Heard. ::3:: Crl.M.C.No.6116 Of 2013 ## 4. The impugned Anx.A-1 complaint dated 14.2.2013 reads ## as follows: “COMPLAINT FILED UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT The complainant and all the accused are acquaintance. All the accused owed an amount of Rs.116949/- (Rupees one lakh sixteen thousand nine hundred and forty nine only) to the complainant. When the complainant demand the above amount, the accused issued a cheque bearing No.101531129 of Federal bank ltd;. Girinagar branch dated 10/11/2012 branch (sic) for Rs.116949 [Rupees one lakh sixteen thousand nine hundred and forty nine only]. At the issue of the above cheque, the accused represented to the complainant that the cheque will be encashed on presentation. On that bonafide belief, the complainant presented the above cheque for collection through his account in The Bank of India, Thiruvaniyoor branch. But that cheque was dishonoured and returned to the complainant on 13/12/2012 with memos stating Reason “insufficient funds”. On the receipt of the memos from the banks, the complainant understood that the accused has not arranged sufficient amount to encash the above cheque or any necessary arrangements to encash the above cheque. The complainant caused to issue a lawyer notice to the accused on 29/12/2012. But the 3rd and 4th accused did not (sic) the notice and transferred the same to them in their present address, others accepted the lawyers notice on and neither replied nor made payment. The reason noted in the returned lawyer notice is 'addressee left from their office' dated 02.01.2013. All the accused has combinedly committed the offence punishable under section 138 of the Negotiable Instruments Act. The cause of action for the complainant arose at Pariyaram kara where the cheque was issued to the complainant, and where the transaction took place is with in the reach of Puthencruz police station. Hence this court has jurisdiction to take cognizance of the offence. The complainant is submitting herewith all necessary documents and preliminary witness schedule in support of the averments in the complaint. Hence, it is most humbly prayed that this Hon'ble court may please to take cognizance of the offence and dispose of the case in accordance with law. Dated this the 14th February 2013.” A bare perusal of Anx.A-1 complaint would reveal that there are no averments anywhere in the complaint as to who exactly is the drawer of the cheque in question or as to whether the drawer of the cheque in question is a company or partnership firm or other corporate body as envisaged in Sec.141 of the N.I. Act. Still, there are no averments in the complaint as to whether the petitioners herein (who are accused Nos.3 ::4:: Crl.M.C.No.6116 Of 2013 & 4) are the signatories of Anx.A-2 dishonoured cheque. Anx.A-2 is the copy of the dishonoured cheque produced along with the complaint. A bare perusal of Anx.A-2 would reveal that there is only one single authorised signatory for the said cheque. Name of the authorised signatory is not discernible either from Anx.A-2 cheque or from Anx.A-1 complaint. The Apex Court has clearly held in the judgment dated 30.8.2017 in Crl.A.No.1534/2017 in N. Harihara Krishnan v. J.Thomas, reported in 2017 (4) KHC 699 (SC), para 24 thereof, that disclosure of the name of the person drawing the cheque is one of the factual allegations which the complainant has to show in the complaint, otherwise in the absence of any authority of law to investigate the offence under Sec.138 of the N.I. Act, there would be no person against whom a Court can proceed, etc. Assuming that the dishonoured cheque in question has been issued from the account of a company or partnership firm or other corporate bodies as envisaged in Sec.141 of the N.I.Act, still it is only to be held that the complaint is not maintainable as against the petitioners herein who are accused Nos.3 & 4. It has been categorically held by the Apex Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & anr. reported in (2005) 8 SCC 89 that in order to repay any vicarious liability as envisaged in Sec.141 of ::5:: Crl.M.C.No.6116 Of 2013 the N.I, Act, there should necessarily be proper and sufficient averments in the complaint that the co-accused directors/partners were in charge of and responsible for the affairs of the conduct of the company/partnership firm as the case may be at the time of commission of the offence. The Apex Court has clearly held in the Three-Judge Bench decision of the Apex Court in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, that the offence under Sec.138 of the N.I Act is committed at the time of dishonour of the cheque in question. Therefore, going by the dictum laid down by the Apex court in the above said decision in S.M.S. Pharmaceutical's case (supra), there should necessarily be proper and sufficient averments in the complaint that the co-accused directors/partners of the company/partnership firm (from whose account the cheque has been drawn) should have been in charge of and responsible for the affairs of the company/partnership firm at the time of the dishonour of the cheque. In the absence of such averments, it has been clearly held in S.M.S. Pharmaceutical's case (supra), that the complaint is not maintainable as against such coaccused directors/partners. Therefore, in the light of these aspects, it is only to be held that the complaint is not maintainable as against the petitioners herein who have been arrayed as accused Nos.3 & 4. ::6:: Crl.M.C.No.6116 Of 2013 5. It is accordingly ordered that the impugned Anx.A-2 complaint which has been re-numbered as S.T.No.3016/2015 on the file of the Judicial First Class Magistrate Court, Kolenchery, and all further proceedings in relation to this case to the extent it is directed against the 2 petitioners herein, who are accused Nos.3 & 4, will stand quashed. In case non bailable warrant is issued as against the 2 petitioners herein (who are accused Nos.3 & 4), the same would also stand recalled and rescinded. It is made clear that the benefit of this direction will be extended only to the 2 petitioners herein (accused Nos.3 & 4) and the trial court should proceed further with the complaint as against the other accused concerned in accordance with law. The petitioner will produce a certified copy of this order before the trial court for necessary information. With these observations and directions, the Crl.M.C stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.