Vivekananda Hari @ Sreehari v. M/s John Pattassery & Co. and others (Crl.M.C. No.4472 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022/9TH AGRAHAYANA,** ## **1944** ## **CRL.MC NO.4472 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 2485/2017 OF JMFC(SPECIAL COURT) FOR TRIAL OF SEC.138, NI ACT CASES (TEMPORARY)** ## **PETITIONER/3RD ACCUSED:** VIVEKANANDA HARI @ SREEHARI, AGED 40 YEARS, S/O.K.RAMAKRISHNA PILLAI, PUTENMADAM HOUSE, KUMARANGARRY P.O.,CHANGANACHERRY - 686 103. BY ADV. SRI.PEEYUS A.KOTTAM ## **RESPONDENT/DE FACTO COMPLAINANT/ACCUSED 1, 2 & 4:** |1|M/S.JOHN PATTASSERY & CO.,| |---|---| ||NANA BUILDING 40/3913, PAYYAPPILLY ROAD,| ||ERNAKULAM – 682017,| ||REPRESENTED BY ITS MANAGING PARTNER,| ||SHEFFY PATTASSERY.| |2|ATLAS GOLD TOWNSHIP (INDIA) PVT LTD.,| ||XI/305 H NEAR FEDERAL BANK LTD., OPP.CIAL,| ||VAPPALASSERY P.O., NEDUMBASSERY - 683 572.| |3|M.M. RAMACHANDRAN, MANAGING DIRECTOR,| ||ATLAS GOLD TOWNSHIP (INDIA) PVT.LTD.,| ||XI/305 H, NEAR FEDERAL BANK LTD., OPP.CIAL,| ||VAPPALASSERY P.O., NEDUMBASSERY - 683 572.| |4|JOSE VARGHESE, GENERAL MANAGER,| ||ATLAS GOLD TOWNSHIP (INDIA) PVT. LTD,| ||XI/305 H, NEAR FEDERAL BANK LTD,| ||OPP.CIAL, VAPPALASSERRY P.O,| ||NEDUMBASSERY-683 572.| |*ADDL.R5|STATE OF KERALA,| ||REPRESENTED BY PUBLIC PROSECUTOR,| ||HIGH COURT OF KERALA,| ||ERNAKULAM, KOCHI – 682 031.| ## **Crl.M.C. No.4472 of 2017** 2 *ADDL.R5 IS IMPLEADED AS PER ORDER DATED 21.08.2017 IN CRL.M.A.No.8932/2017. *ADDL.R6 THE REGISTAR OF COMPANIES (KERALA), BMC ROAD, THRIKKAKARA, KAKKANAD, KOCHI-682 021. *ADDL.R6 IS IMPLEADED AS PER ORDER DATED 27.09.2017 IN CRL.M.A.NO.10520/2017 IN CRL.M.C. No.4472/2017 BY ADVS. SRI.T.R.JERRY SEBASTIAN SRI.M.R.ANISON SRI.ABHILASH BHASKAR SRI.J.ARUN SRI.BINU JOHN SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SRI.THOMAS M.JACOB SRI.SUVIN R.MENON, CGC THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C. No.4472 of 2017** 3 **==> picture [126 x 11] intentionally omitted <==** ## **Dated, this the 30[th] November, 2022** This is a petition filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the 3[rd] accused in C.C. No.2485/2017 on the files of Special Court, Kochi, where the accused alleged to have committed offence punishable under Section 138 of the Negotiable Instruments Act. 2. In this petition, the petitioner challenged order of the trial court to go with trial without the junction of the 2[nd] accused, who represent the 1[st] accused also. Now the 2[nd] accused is no more. Therefore, the 1[st] accused, the Company can be represented by a competent person. 3. It is submitted by the learned counsel for the complainant that a proper petition in this regard has been filed before the trial court and is pending for consideration. ## **Crl.M.C. No.4472 of 2017** 4 4. Therefore, this petition stands dismissed with liberty to the court below to go with trial in the matter, after impleading a of competent person to represent the 1[st] accused, in accordance with law. 5. In this context, it is to be observed that criminal law recognises splitting up of cases among the accused to facilitate trial of the available accused after splitting and refiling of case against an accused, whose prosecution could not be secured. In the three Bench decision of the Apex Court, reported in [(2021) 6 SCC 258] : _**P. Mohanraj & Ors. v.**_ _**M/s.Shah Brothers Ispat Pvt. Ltd.,**_ the Apex Court held the legal position in para.101 and 102, as under: _“101: As far as the Directors/persons in management or control of the corporate debtor are concerned, a Sections138/141 proceeding against them cannot be initiated or continued without the corporate debtor—see [(2012) 5 SCC 661 : (2012) 3 SCC (Civ) 351 : (2012) 3 SCC (Cri) 241],_ _**Aneeta**_ **Crl.M.C. No.4472 of 2017** 5 _**Hada v. Godfather Travels & Tours (P) Ltd.** This is because Section 141 of the Negotiable Instruments Act speaks of persons in charge of, and responsible to the Company for the conduct of the business of the Company, as well as the Company. The Court, therefore, in_ _**Aneeta Hada** held as under: (SCC pp.686-88, paras 51, 56 & 5859)_ _“51. We have already opined that the decision [(1984) 4 SCC 352 : 1984 SCC (Cri) 620],_ _**Sheoratan Agarwal v. State of**_ _**M.P** runs counter to the ratio laid down in [(1970) 3 SCC 491 : 1971 SCC (Cri) 97],_ _**State of Madras v. C.V.Parekh** which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in [(2000) 1 SCC 1 : 2001 SCC (Cri) 174],_ _**Anil Hada v. Indian Acrylic Ltd.** has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the Company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of tex non cogit and impossibilia gets attracted._ _xxxx xxxx xxxx xxxx 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act,_ **Crl.M.C. No.4472 of 2017** 6 **==> picture [361 x 631] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||||| |---|---|---|---|---|---|---|---| |arraigning of a company as an accused is| |imperative.|The|other|categories|of| |offenders|can|only|be|brought|in|the| |dragnet on the touchstone of vicarious| |liability as the same has been stipulated| |in the provision itself. We say so on the| |basis|of|the|ratio|laid|down|in| |C.V.Parekh|'s|case|(supra)|which|is|a| |three-Judge Bench decision. Thus, the| |view expressed in|Sheoratan Agarwal v.| |State|of|M.P|'s|case|(supra)|does|not| |correctly|law|down|the|law|and,| |accordingly, is hereby overruled. The| |decision in|Anil Hada|'s case (supra) is| |overruled with the qualifier as stated in| |para.51. The decision in [(1987) 3 SCC| |684 : 1987 SCC (Cri) 632],|U.P. Pollution| |Control Board v. Modi Distillery|has to be| |treated to be restricted to its own facts| |as has been explained by us hereinabove.| |102.|Since the corporate debtor would be covered| |by the moratorium provision contained in Section| |14 IBC, by which continuation of Sections 138/141| |proceedings|against|the|corporate|debtor|and| |initiation|of|Sections|138/141|proceedings| |against the said debtor during the corporate| |insolvency resolution process are interdicted,| |what is stated in paras 51 and 59 in|Aneeta Hada| |would|then|become|applicable.|The|legal| |impediment contained in Section 14 IBC would make| |it impossible for such proceeding to continue or| |be|instituted|against|the|corporate|debtor.| **----- End of picture text -----**<br> 7 ## **Crl.M.C. No.4472 of 2017** _Thus, for the period of moratorium, since no Sections 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Sections 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.”_ 6. Thus the law is well declared by the Apex Court that moratorium provision contained in Sec.14 of IBC would apply only to a corporate debtor, the natural persons mentioned in Section 141, continuing to be statutorily liable under Chapter XVII of the N.I Act. In view of the above legal position settled by the 3 Bench of the Apex Court, the argument advanced by the learned counsel for the petitioner cannot be accepted. Therefore, it cannot be said that splitting up of cases against one among the accused is prohibited 8 ## **Crl.M.C. No.4472 of 2017** under law. Therefore, the order impugned does not suffer from any legal infirmity to revisit the same by this Court. Sd/- **A.BADHARUDEEN, JUDGE.** ww 9 ## **Crl.M.C. No.4472 of 2017** ## **APPENDIX OF CRL.MC 4472/2017** PETITIONER'S ANNEXURES: ANNEXURE A1 THE TRUE COPY OF COMPLAINT FILED BY THE 1ST RESPONDENT IN C.C.3953/2015. ANNEXURE A2 A TRUE COPY OF LETTER DATED 07.12.2015 SENT THROUGH E-MAIL TO THE PETITIONER. ANNEXURE A3 THE TRUE COPY OF THE ORDER OF THE LEARNED MAGISTRATE DATED 14.11.2016 (WRONGLY SHOWN AS 14.11.2017). ANNEXURE A4 THE TRUE COPY OF STATEMENT OF ACCOUNTS BEARING NO.914010012210182 FOR THE PERIOD FROM 01.04.2014 TO 01.04.2015. ## RESPONDENTS' ANNEXURES: - ANNEXURE R6(A) TRUE COPY OF THE SIGNATORY INFORMATION OF THE 2ND RESPONDENT COMPANY. - ANNEXURE R6(B) TRUE COPY OF THE DOCUMENT SHOWING FILING POSITION OF THE 2ND RESPONDENT COMPANY. - ANNEXURE R6(C) TRUE COPY OF THE FORM DIR-12 INTIMATING THE RESIGNATION OF SRI.M.M.RAMACHANDRAN. ANNEXURE R6(D) TRUE COPY OF THE FORM DIR-12 INTIMATING THE RESIGNATION OF SRI.T.V.KRISHNAKUMAR. ANNEXURE R6(E) TRUE COPY OF THE FORM DIR-12 APPOINTMENT OF SRI.VIVEKANANDA.