V.G.JOSEKUTTY v. STATE OF KERALA & V.G.PAPPACHAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.Rev.Pet.No. 2325 of 2010() -----------------------------AGAINST THE ORDER DATED 28/07/2010 IN CMP.3335/2010 IN CC.32/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES),PUNALUR .................... REVN. PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------------- V.G.JOSEKUTTY, S/O.K.GEORGE, VAYALIL HOUSE, PIRAVANTHOOR.P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. DR.PAULY MATHEW MURICKEN ## RESPONDENT(S): STATE & RESPONDENT/STATE & ACCUSED ------------------------------------------------- 1. STATE OF KERALA, REPRESETNED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.G.PAPPACHAN, S/O.GEEVARGHESE, BLAHETHU VEEDU, ELIKATTOOR, PIRAVANTHOOR, PATHANAPURAM TALUK, KOLLAM DISTRICT. ADV. SRI.ALAN PAPALI FOR R2 SRI.SOJAN MICHEAL FOR R2 SMT.DHANYA P.ASHOKAN FOR R2 SRI.N.N.ARUN BECHU FOR R2 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.7356/1O IN CRL.R.P.NO.2325/2010 ## DISMISSED 7.2.2011. SD/- K.HEMA, JUDGE. ## **K.HEMA, J.** ## **----------------------------------------------Crl.R.P. No.2325 of 2010 ----------------------------------------------Dated 7[th] February, 2011.** ## **O R D E R** This revision petition is filed challenging Annexure IV order. 2. A petition was filed by revision petitioner under Section 319 of the Criminal Procedure Code ('the Code', for short), requesting the court to proceed against a firm by name, 'V.G.P.Chitty Fund'. According to petitioner, he filed a complaint against second respondent, alleging offence under Section 138 of the Negotiable Instruments Act ('the Act', for short). On completion of the prosecution evidence, accused adduced evidence to prove that the account from which Ext.P1 cheque was drawn stood in the name of a firm by name V.G.P.Chitty Fund and that account was maintained and operated by second respondent. The fact that the account was maintained by the firm came to the knowledge only at a late stage. In such circumstances, it is necessary that the firm is also proceeded against, for the offence under Section 138 of the Act and hence, petition was filed under Section 319 of the Code. Crl.R.P. No.2325/10 2 3. A written objection was filed by second respondent stating that pre-requisites to array the firm under Section 138 of the Act have not been complied with. Therefore, the firm cannot be proceeded against. It is also pointed out that a perusal of Ext.P1 cheque itself would show that it was signed for and on behalf of the firm. Therefore, the contention that the complainant came to know that account holder was a firm only at the time of defence evidence, is false. 4. The trial court, after considering the rival contentions accepted the contentions of second respondent and found that there is no ground to proceed against the firm. It was noted that a perusal of the cheque itself revealed that it was signed on behalf of the firm. The complainant is none other than a practising lawyer and hence, he ought to have understood that the account was maintained by the firm, in the light of the contents of Ext.P1. The trial court also found that no notice under Section 138 of the Act is issued to the firm and therefore, offence under Section 138 will not lie against the firm. Crl.R.P. No.2325/10 3 5. A reading of Section 319 of the Code shows that where in the course of trial of an offence, it appears from the “evidence” that any person not being accused, has committed any offence for which such person could be tried with the accused, the court may proceed against such person for the offence, which he appears to have committed. It is clear from a reading of Section 319 of the Code that a person, who is not shown as an accused in the complaint also can be proceeded against, if it appears from the evidence that such person committed an offence. 6. According to revision petitioner, the firm committed offence under Section 138 of the Act. To establish an offence under Section 138, all the ingredients of the offence have to be proved. There must be allegations that such person has drawn the cheque on the account maintained by him with the banker and that the said cheque was dishonoured for either of the reasons stated in Section 138. Apart from this, some legal formalities have to be complied with, to constitute offence under Section 138 of the Act. Crl.R.P. No.2325/10 4 7. Those formalities are referred to in the proviso to Section 138 of the Act. As per the said proviso, notice has to be sent to the offender, demanding payment of the money within 15 days of receipt of the information from the bank regarding return of cheque as unpaid. If the drawer of the cheque fails to make the payment of the money to the payee or the holder in due course, within 15 days of receipt of the said notice, offence under Section 138 of the Negotiable Instruments Act will be attracted against such person. 8. Learned counsel for petitioner could not substantiate that there is any evidence on record to show that the firm which is sought to be proceeded against as a coaccused committed offence under Section 138 of the Act. Learned counsel for revision petitioner would submit that as per the evidence of DW1, the firm is the person who is maintaining the account with the bank from which Ext.P1 is drawn. 9. The mere fact that the cheque is drawn by the firm on the account maintained by itself is not sufficient to attract offence under Section 138 of the Act, in the light of what Crl.R.P. No.2325/10 5 is stated in Section 138 of the Act read with the proviso thereto. But, there is no evidence to prima facie reveal that ingredients of Section 138 are made out against firm and it committed the offence under Section 138. Therefore, trial court was correct in dismissing the petition. 10. As pointed out by learned Magistrate, a look at Ext.P1 itself would prima facie reveal that the account was maintained by the firm and that Ext.P1 cheque was signed for and on behalf of the firm. But, revision petitioner did not proceed against the firm. He also did not proceed against any of the persons in charge of and responsible for conduct of the business of the firm. On the other hand, revision petitioner proceeded against second respondent in his personal capacity on the allegation that he borrowed the amount and issued Ext.P1 cheque to discharge his personal liability. 11. In such circumstances, the mere fact that in the course of evidence, the revision petitioner came to know that the cheque was drawn from the account of the firm may not be sufficient to assume that an offence is committed by the firm, Crl.R.P. No.2325/10 6 particularly on the basis of a document produced by the accused in court showing that the account holder is the firm. Therefore, by invoking Section 319 of the Code, the firm cannot be proceeded against. 12. Learned counsel for revision petitioner cited a decision reported in **Plywood House v. Wood Craft Products Ltd.** (1993(2) KLT 371) in support of his contentions. It was vehemently contended that it was also a case where a firm was sought to be proceeded against under Section 319 of the Code and this Court found that there is no bar for proceeding against the firm. 13. On going through the decision cited by learned counsel for revision petitioner, I find that the contention taken before this Court in that case was that the prosecution against the Managing Partner was not maintainable, as the firm which had drawn the cheques was not made an accused in the complaint. The complainant had filed a petition praying to proceed against firm, as additional accused and the said petition was allowed. Crl.R.P. No.2325/10 7 14. This court in **Plywood House's case** (supra) held that under sub section (1) of Section 319 of the Code, the court is given power to proceed against any person, who appears to have committed any offence for which such person could be tried together with the accused arrayed in the case. Once the court decides to proceed against such person, then sub section (4) will save the earlier act of taking cognizance of offence. Hence, the stage at which the new accused was brought in the array of accused had no legal impact on the proceedings. This dictum has nothing to do with the contentions raised in this petition. 15. In **Plywood House's Case** (supra), the main contention was with respect to the scope of Section 142 of the Code, in taking cognizance of the offence. It is quite clear from the decision cited above itself that by virtue of sub section (1) of Section 319 of the Code, the court can proceed against any person other than the accused, only if he appears to have committed any offence. In this case, on the facts, there is no evidence that the person sought to be proceeded against Crl.R.P. No.2325/10 8 committed offence under Section 138 of the Act and the evidence on record will not establish even prima facie that requirements under Section 138 read with the proviso are satisfied in respect of firm. 16. Hence, this petition can only be dismissed. However, I make it clear that this order will not stand in the way of revision petitioner seeking appropriate remedy in accordance with law, if so advised. The observations in this order are made only to decide whether there is any ground to proceed against the firm under Section 319 of the Code. This petition is dismissed. **K.HEMA, JUDGE.** ## **tgs**