High Court of KeralaSingle JudgeDismissed

V.M. Reji v. Selvan alias Selvaraj and State of Kerala

Case / Petition Number:Crl.MC.No.3797 OF 2020(D)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2020-12-04
Court Decision / Holding
Crl.MC No.3797 of 2020 (D) stands dismissed. If the petitioner surrenders before the court below within three weeks from today and applies for regular bail, the court shall consider and dispose of the bail application in accordance with law, preferably on the date of filing of the bail application.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • V.M.Reji

Respondents

  • Selvan alias Selvaraj
  • State of Kerala rep by the Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sajan Varghese K.
  • • Liju M.P.

Counsels for Respondents

  • • Senior Public Prosecutor

Case Synopsis & Summary

V.M. Reji, the petitioner in Crl.MC.No.3797 of 2020 (D), challenges Annexure A, the complaint in ST 259/2016, under Section 138 of the Negotiable Instruments Act, on the ground that the payee being a proprietary concern renders the complaint non-maintainable when filed by the proprietor. The cheque, as per Annexure-C, was drawn in favour of M/s Mahalakshmi Finance. Annexure-A shows the complaint was filed by the proprietor of M/s Mahalakshmi Finance, a proprietary concern, thus raising the issue of maintainability. The petitioner argued that the complaint cannot be maintained since the payee is a proprietary concern and the complaint should be brought by the proprietor in his personal capacity or by the proprietary concern through its sole proprietor or by the proprietor’s attorney under a Power of Attorney. The court relied on the Supreme Court decision in Sankar Finance & Investments v. State of Andhra Pradesh and Others (2008(4) KHC 352) which held that a complaint by a proprietary payee is maintainable under three forms. The learned counsel for the petitioner contended otherwise, but the court found that Annexure-A complaint was perfectly maintainable in law, distinguishing the present argument. Consequently, the court dismissed the Crl.MC but directed that if the petitioner surrenders within three weeks and applies for regular bail, the bail application should be considered expeditiously, preferably on the date of filing.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

  • Proprietary payee doctrine: where the payee is a proprietary concern, the complaint can be filed by (i) the proprietor describing himself as the sole proprietor; (ii) the proprietary concern described as a sole proprietary concern, represented by its sole proprietor; or (iii) the proprietor or the proprietary concern represented by an attorney under a Power of Attorney executed by the sole proprietor.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since the cheque was drawn in favour of M/s Mahalakshmi Finance, a proprietary concern, the complaint filed by the proprietor is not maintainable. Annexure-C shows the cheque was issued to M/s Mahalakshmi Finance. Annexure-A indicates the complaint was filed by the proprietor of the proprietary concern, rendering Annexure-A complaint potentially defective; the maintainability hinges on the proprietary-status doctrine. Relying on the Supreme Court in Sankar Finance & Investments v. State of Andhra Pradesh, the petition seeks quashing of Annexure-A and the proceedings in ST 259/2016.

Contentions of Respondents

The State/Respondents argue that the complaint is perfectly maintainable. The Hon'ble Supreme Court in Sankar Finance & Investments v. State of Andhra Pradesh (2008(4) KHC 352) holds that a payee who is a proprietary concern may be complaint by the proprietor, by the proprietary concern through its proprietor, or by the proprietor or proprietary concern by POA, and Annexure-A is maintained accordingly. The court should not quash the complaint.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
M/s.Sankar Finance & Investments v. State of Andhra Pradesh and Others2008(4) KHC 352PositiveCited to support the maintainability principle for a payee who is a proprietary concern; the complaint may be filed by the proprietor or by the proprietary concern through the proprietor, or by attorney under POA.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **Crl.MC.No.3797 OF 2020(D)** **AGAINST THE ORDER/JUDGMENT IN L.P.No.33/2018 OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD** **AGAINST THE ORDER/JUDGMENT IN ST 259/2016 OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD** ## **PETITIONER/S:** **V.M.REJI, AGED 51 YEARS, S/O.JOSEPH, PROPRIETOR, AMRITHAM BIO ORGANIC RESEARCH AND DEVELOPMENT CENTER, ANJUMORTY MANGALAM, VADAKKENCHERY, PALAKKAD-678 682.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENT/S:** **1 SELVAN ALIAS SELVARAJ, AGED 58 YEARS, S/O.SUBRAMANIA MOOTHAN, PROPRIETOR, M/S.MAHALAKSHMI FINANCE, P.V.TOWER, T.B.ROAD, PALAKKAD-678 001.** - **2 STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031.** **R2 SMT.M.K.PUSHPALATHA, SR.P.P.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No.3797 OF 2020(D)** -2- ## **ORDER** **The petitioner is the accused in S.T.No.259/2016 on the files of the court below. The above case arose out of a complaint filed by the first respondent herein before the court below alleging offence under Section 138 of the Negotiable Instruments Act. The petitioner has filed this Crl.M.C. praying for quashing AnnexureA complaint and all further proceedings in S.T.No.259/2016 on the files of the court below.** **2. Service is complete. However, there is no appearance for the first respondent.** ## **Crl.MC.No.3797 OF 2020(D)** -3- **3. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor.** **4. The learned counsel for the petitioner has argued that since the cheque was drawn in favour of M/s.Mahalakshmi Finance, which is a proprietary concern, the complaint filed by the proprietor is not maintainable. Annexure-C is the copy of the cheque, which would show that the cheque was issued in favour of M/s.Mahalakshmi Finance. It appears from Annexure-A complaint that the complaint was filed by the Proprietor of M/s.Mahalakshmi Finance.** **5. Now the question to be considered is as to whether the said complaint is** ## **Crl.MC.No.3797 OF 2020(D)** -4- ## **maintainable or not.** **6. The Hon'ble Supreme Court in M/s.Sankar Finance & Investments v. State of Andhra Pradesh and Others [2008(4) KHC 352] held in Para 9 thus:-** **“Therefore where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the 'payee'; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a Power of Attorney executed by the sole proprietor.** **7. In this case, the complaint was filed by Selvan alias Selvaraj, describing** ## **Crl.MC.No.3797 OF 2020(D)** -5- |**himself**<br>**as**<br>**the**<br>**Proprietor**<br>**of**| |---| |**M/s.Mahalakshmi Finance. In the first**| |**paragraph of the complaint, it is clearly**| |**averred that the complainant is the**| |**proprietor of M/s.Mahalakshmi Finance, a**| |**proprietary concern. This would show that**| |**the complaint was filed by the first**| |**respondent describing himself as the**| |**proprietor of the proprietary concern.**| |**Since Annexure-A complaint was filed by the**| |**proprietor of the proprietary concern,**| |**Annexure-A**<br>**complaint**<br>**is**<br>**perfectly**| |**maintainable in law. Therefore, the argument**| |**in this regard advanced by the learned**| |**counsel for the petitioner cannot be**| |**sustained.**| ## **Crl.MC.No.3797 OF 2020(D)** -6- **8. No other argument has been advanced by the learned counsel for the petitioner to support his prayer for quashing Annexure-A complaint. In view of the above, I do not find any reason to quash Annexure-A complaint.** **In the result, this Crl.M.C. stands dismissed.** **However, I make it clear that if the petitioner surrenders before the court below within three weeks from today, and applies for regular bail, after giving copy of the bail application to the learned counsel for the first respondent in advance, the court below shall consider and dispose of the application for bail in accordance with law,** ## **Crl.MC.No.3797 OF 2020(D)** -7- **as expeditiously as possible, preferably on the date of filing of the application itself.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK ## **Crl.MC.No.3797 OF 2020(D)** -8- ## **APPENDIX OF Crl.MC 3797/2020** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A CERTIFIED COPY OF THE COMPLAINT IN ST.NO.259/2016 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD. ANNEXURE-B TRUE COPY OF THE NOTICE DATED 09/04/2013 ADDRESSED TO THE PETITIONER. ANNEXURE-C TRUE COPY OF THE CHEQUE BEARING NO.000003 DATED 15/02/2013 OF HDFC BANK.**