SEBY ALAPPAT v. STATE OF KERALA & VELUTHEDATH AGENCIES

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940** **Crl.MC.No. 3803 of 2018 CC 1567/2017 of J.M.F.C.-I, ALUVA** ## **PETITIONER(S)** **SEBY ALAPPAT,** **AGED 51 YEARS, SON LATE MR.P.V.ITTICHAN, VAARKEY BHAVAN, LOURDPURAM P.O., THRISSUR DISTRICT, PIN-680005.** **BY ADVS.SRI.SHAJI CHIRAYATH** **SMT.JIJI M. VARKEY SMT.SAVITHA GANAPATHIYATAN SRI.M.M.SHAJAHAN** **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** ## **2. VELUTHEDATH AGENCIES,** **GOVERNMENT HOSPITAL JUNCTION, ALUVA, ERNAKULAM, PIN-683101, REPRESENTED BY ITS PROPRIETOR V.A.IBRAHIMKUTTY, VELUTHEDATH HOUSE, KEEZMADU, ERUMATHALA P.O., ALUVA, ERNAKULAM, PIN-683112.** **BY PUBLIC PROSECUTOR SRI. E.C. BINEESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3803 of 2018 ()** ## ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A1- CERTIFIED COPY OF THE COMPLAINT IN CALENDAR CASE NO.1567 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT (I) AT ALUVA. ANNEXURE A2- CERTIFIED OF THE CHEQUE PRODUCED ALONG WITH ANNEXURE A1 IN CALENDAR CASE NO.1567 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT (I) AT ALUVA. ANNEXURE A3- CERTIFIED OF THE LAWYER NOTICE IN CALENDAR CASE NO.1567 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT (I) AT ALUVA. ANNEXURE A4- CERTIFIED OF THE REPLY NOTICE ISSUED BY THE 4TH ACCUSED IN CALENDAR CASE NO.1567 OF 2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT (I) AT ALUVA.** **/TRUE COPY/** **ani/** **P.S. to Judge** ## B. SUDHEENDRA KUMAR, J. ..................................................... ## Crl.M. C. No. 3803 of 2018 ..................................................... Dated this the 18[th] day of June 2018 ## ORDER The petitioner is the third accused in C.C. No. 1567 of 2017 on the files of the court below. The petitioner filed this Crl.M.C. praying for quashing Annexure-A1 complaint and further proceedings against the petitioner in the above said case. 2. Heard the learned counsel for the petitioner. 3. The learned counsel for the petitioner has -: 2 :- Crl.M. C. No. 3803 of 2018 submitted that the petitioner was not a signatory to the cheque in question and hence the prosecution under Section 138 of the N.I.Act, against the petitioner cannot be sustained. 4. I have gone through Annexure-A1 complaint. In Annexure-A1 complaint, it is stated that the petitioner was also one of the directors of the company. It is also averred in the complaint that the petitioner was also responsible for the day-to-day affairs of the Company. The learned counsel for the petitioner has submitted that the Articles of Association would show that only the Managing Director was having the financial powers. Before quashing the complaint, the court will have to see the averments in the complaint. If the averments in the -: 3 :- Crl.M. C. No. 3803 of 2018 complaint contain the ingredients to constitute the offence under Section 138 of N.I.Act, the court will not be justified in quashing the complaint under Section 482 Cr.P.C. There is clear averment in Annexure-A1 that the petitioner was also responsible for the day-to-day affairs of the Company. The petitioner would contend that the Article of Association provides financial powers only with the Managing Director. However, even the petitioner does not have a contention that there is any prohibition for the other Directors in looking after the day-to-day affairs of the Company. Whether the petitioner was also in actual charge of and responsible for the day-to-day affairs of the Company is a matter for evidence. Suffice it to say that since there is specific allegation in the complaint that the petitioner is also in-charge of and -: 4 :- Crl.M. C. No. 3803 of 2018 was responsible for the conduct of the business of the Company, the argument advanced by the learned counsel in this regard cannot be sustained. Section 141 of the N.I. Act provides that if the person committing an offence under Section 138 of the N.I.Act is a company, every person who, at the time the 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. Sub Section (2) of Section 141 provides that if any offence under Section 138 of the N.I.Act is committed by a Company and it is proved that the offence had been committed with the consent or connivance of, or is attributable to any neglect on the -: 5 :- Crl.M. C. No. 3803 of 2018 part of, any Director, Manager, Secretary or other officer of the Company, such Director, Manager, Secretary or other officer of the Company shall also be deemed to be guilty of the offence. 6. The Apex Court in Aneeta Hada v. Godfather Travels and Tours Private Limited [(2012) 5 SCC 661] held that if the Company commits an offence, the Company as well as every Director, who was in-charge of and responsible for the day-to-day affairs of the Company shall be liable to be prosecuted along with the Company. 7. In this case, Annexure-A1 complaint would show that the petitioner was also in-charge of and was -: 6 :- Crl.M. C. No. 3803 of 2018 responsible for the day-today affairs of the company. Therefore, the prosecution against the petitioner is perfectly in accordance with law. In the said circumstances, I find no reason to quash Annexure-A1 complaint as sought for. In the result, this Crl. M.C. stands dismissed. Sd/-B. SUDHEENDRA KUMAR, JUDGE. ani/