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

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-12-04
Court Decision / Holding: Crl.M.C. stands dismissed. However, if the petitioner surrenders before the court below within three weeks 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 application itself.
Final Disposition: The Crl.M.C. stands dismissed.

Parties to the Case

Appellants / Petitioners

V.M. Reji, S/o Joseph, Proprietor, Amritham Bio Organic Research and Development Center

Respondents

Selvan alias Selvaraj, W/o Subramania Moothan, Proprietor, M/s Mahalakshmi Finance
State of Kerala, represented by the Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sajan Varghese K.
• Liju M.P.

Counsels for Respondents

• Smt. M.K. Pushpalatha, Sr. P.P.

Case Synopsis & Summary

This criminal miscellaneous case arises from S.T. No.1616/2018 before the Judicial Magistrate of First Class, Palakkad, and relates to an offence under Section 138 of the Negotiable Instruments Act. The petitioner, V.M. Reji, seeks to quash Annexure A (the complaint) and all further proceedings in S.T. No.1616/2018, arguing that the cheque was drawn in favour of M/s Mahalakshmi Finance, a proprietary concern, and therefore the complaint filed by the proprietor is not maintainable. The court frames the core question as to the maintainability of the complaint. The petitioner’s counsel contends that because the payee is a proprietary concern, the complaint by the proprietor cannot be sustained. The court relies on M/s.Sankar Finance & Investments v. State of Andhra Pradesh and Others (2008(4) KHC 352), which held that when 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 such, represented by its sole proprietor; or (iii) the proprietor or the proprietary concern represented by the attorney under a Power of Attorney. In this case, the complaint was filed by Selvan alias Selvaraj, describing himself as the proprietor of M/s Mahalakshmi Finance, rendering Annexure A maintainable. The court, finding no other substantive ground to quash, dismisses the Crl.M.C. It also directs expeditious consideration of bail if the petitioner surrenders within three weeks, ensuring disposal of the bail application in accordance with law.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act

Legal Doctrines & Maxims

Payee being a proprietary concern—maintainability of complaint by proprietor or by the proprietary concern itself or by the proprietor’s attorney under a Power of Attorney, as laid down in M/s.Sankar Finance & Investments v. State of Andhra Pradesh and Others (2008(4) KHC 352)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant 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. The question is whether Annexure A, filed by the proprietor of the payee, is legally sustainable and whether the complaint should be quashed. The petitioner relies on the principle articulated in Sankar Finance & Investments v. State of Andhra Pradesh to argue against maintainability.

Contentions of Respondents

No detailed respondent-argument is recorded in the document; the matter was argued by the petitioner’s counsel and the Senior Public Prosecutor.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M/s.Sankar Finance & Investments v. State of Andhra Pradesh and Others	2008(4) KHC 352	Positive	The decision is cited to support the maintainability of a complaint filed by the proprietor of a proprietary payee when the payee is described as a proprietary concern.

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.3823 OF 2020(G)** **AGAINST THE ORDER/JUDGMENT IN L.P.No.41/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PALAKKAD** **AGAINST THE ORDER/JUDGMENT IN ST 1616/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** ## **PETITIONER/S:** **V.M. REJI, S/O JOSEPH, AGED 51, PROPRIETOR, AMRITHAM BIO ORGANIC RESEARCH AND DEVELOPMENT CENTER, ANJUMORTY MANGALAM, VADAKKENCHERY, PALAKKAD 678682. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENT/S:** 1 **SELVAN ALIAS SELVARAJ, W/O SUBRAMANIA MOOTHAN, AGED 58, PROPRIETOR, M/S MAHALAKSHMI FINANCE, O.V. TOWER, T.B. ROAD, PALAKKAD-01.** 2 **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.** **OTHER PRESENT:** ## **SMT. M.K.PUSHPALATHA, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No.3823 OF 2020(G)** -2- ## **ORDER** **The petitioner is the accused in S.T.No.1616/2018 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.1616/2018 on the files of the court below.** **2. Service is complete. However, there is no appearance for the first respondent.** ## **Crl.MC.No.3823 OF 2020(G)** -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.3823 OF 2020(G)** -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.3823 OF 2020(G)** -5- |**himself** **as** **the** **Proprietor** **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** **complaint** **is** **perfectly**| |**maintainable in law. Therefore, the argument**| |**in this regard advanced by the learned**| |**counsel for the petitioner cannot be**| |**sustained.**| ## **Crl.MC.No.3823 OF 2020(G)** -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.3823 OF 2020(G)** -7- **as expeditiously as possible, preferably on the date of filing of the application itself.** **Sd/-** **B. SUDHEENDRA KUMAR,** **JUDGE** STK **Crl.MC.No.3823 OF 2020(G)** -8- ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE-A CERTIFIED COPY OF THE COMPLAINT IN ST 1616/2018 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD. ANNEXURE-B TRUE COPY OF THE NOTICE DATED 09.04.2013 ADDRESSED TO THE PETITIONER. ANNEXURE-C TRUE COPY OF THE CHEQUE BEARING NUMBER 000002 DATED 15.01.2013 OF HDFC BANK.**