Tessy Joshy & Kunjamma George v. Apple Credit Corporation & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 Crl.MC.No. 671 of 2004(A) ------------------------CC.628/2000 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER: ------------ 1. TESSY JOSHY, NIRMAN SINDIA, M.D.COMMERCIAL CENTRE, KOTTAYAM. 2. KUNJAMMA GEORGE, W/O.LATE GEORGE NIRMAN SINDIA, M.D. COMMERCIAL CENTRE, KOTTAYAM. BY ADV. SRI.TOMY SEBASTIAN RESPONDENTS: ------------- 1. APPLE CREDIT CORPORATION, CHOICE TOWERS IST FLOOR, PANAMPILLY NAGAR, MANORAMA JUNCTION, COCHIN-16, REPRESENTED BY ITS ASSISTANT OFFICER (RECOVERY) SRI.DINESH KUMAR.V.L. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.NO.3119/2004 IN CRL.M.C. NO.671/2004 DISMISSED. 6-2-2008 SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.M.C.No.671 of 2004 ---------------------------------------------Dated, 6[th] February, 2008 ## **ORDER** This is a petition filed under section 482 of Cr.P.C. Petitioners are accused Nos.6 and 7 in C.C.No.628/2000 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. The prayer is to quash Annexure A complaint and all proceedings thereon. 2. Anneure A is a complaint filed under sections 190 and 200 of the Crl.P.C. read with Sec.142 of the Negotiable Instruments Act for the offences punishable under Section 138 of the N.I.Act and Section 420 of the Indian Penal Code. The substance of the allegation is that accused Nos. 2 and 3 issued a cheque for Rs.10,800/- in favour of the complainant, which when presented for encashment, was dishonoured for want of sufficient funds in the account of the accused and in spite of statutory notice, the amount was not paid and hence filed the complaint against the accused, 7 in numbers. The petitioners herein are accused Nos. 6 and 7. CRMC 671/2004 ## **-:2:-** According to the averments in the above Crl.M.C., no offence will lie against the petitioners who are sleeping partners of the the Ist accused firm. 3. When the matter came up for consideration on 153-2004, interim stay of the lower court proceedings was granted and subsequently it was extended time and again. From the endorsement on the file it is seen that stay was extended for 3 months on 8-4-2005 and thereafter the stay is not seen extended. It is also seen from the endorsement that service of notice to the party respondent is not effected so far in spite of specific direction by this Court on 8-4-2005. Though the petitioners were directed to take fresh notice, no process was filed. The matter again came up for consideration on 4-2-2008 on which date, the counsel for the petitioners seeks time to get instructions. Today when the matter was taken up for consideration, again the counsel for the petitioners submitted that there is no instruction and it was also brought to my notice that other case of similar offences in which parties are same has CRMC 671/2004 ## **-:3:-** already been settled. 4. Counsel for the petitioners submitted that the averments contained in Annexure A complaint are not sufficient to prosecute the offence either under section 138 of N.I.Act or under section 420 of IPC. According to the counsel, the petitioners who are accused Nos.6 and 7 are sleeping partners of Ist accused firm and they are not involved in the day to day affairs of the partnership firm and, therefore, no criminal liability can be fixed against them. In paragraph 2 of the complaint there is an averment that even though accused 2 and 3 are signatories to the cheque, the other accused who are the partners of the Ist accused firm are jointly and severally liable for all the acts done by the 2[nd] and 3[rd] accused on behalf of the Ist accused firm. In paragraph 5 of the complaint it is stated that accused Nos.4 to 7 cannot escape from liability by simply saying that they had not signed the cheque since the subsequent conduct of all the accused by non accepting the registered notices clearly CRMC 671/2004 **-:4:-** speaks the mens rea of all the accused to deceive the complainant. According to the complainant, from the above conduct of the other accused, it is discernible that all the accused have committed the offence punishable under section 420 of I.P.C. But the counsel for the petitioners submitted that because the petitioners are partners of the Ist accused firm, no liability under section 138 of N.I.Act or under section 420 of I.P.C. can be fixed against them and in support of the above contention, the counsel cited a decision in **Katta Sujatha v. Fertilizers & Chemicals Travancore Ltd.** {(2002) 7 SCC page 655)}. The above decision is connected with a case under section 138 of N.I.Act. Here, Annexure A complaint is not only under section 138 of N.I.Act but also under section 420 of IPC. Moreover, the contentions raised by the counsel for the petitioners have to be decided in the light of the evidence and materials which are yet to be adduced at the time of trial and the petitioners are free to take up these contentions before the trial court at appropriate time. CRMC 671/2004 ## **-:5:-** Regarding the contentions raised by the counsel for the petitioners, I am not proposed to enter into any finding since such finding is likely to adversely affect either the petitioners or the complainant. in the result, I find no merit in the Crl.M.C and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE.** kvm/- CRMC 671/2004 ## **-:6:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: