V.V. Venugopal v. A.R. Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 6TH DAY OF MAY 2016/16TH VAISAKHA, 1938** ## **Crl.MC.No. 1340 of 2016 ()** ## **--------------------------ST.NO. 2267/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, PERINTHALMANNA** ## **------------------** ## **PETITIONER/ACCUSED NO.2:** **------------------------------------------** **V.V.VENUGOPAL, S/O. ACHUTHAN, AGED 54 YEARS, VELURE VALAPPIL HOUSE, J.N. ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENT(S)/COMPLAINANT, IST ACCUSED AND STATE:** **----------------------------------------------------------------------------------------** **1. A.R.JOSEPH, S/O. RAPPAYI, MANAGING PARTNER, ST. JOSEPH PRESS, CALICUT ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT - 679 322.** **2. THE PERINTHALMANNA TALUK RURAL HOUSING CO-OPERATIVE SOCIETY LTD NO. 270, PUTHUR ROAD, PERINTHALMANNA P.O., MALAPPURAM DISTRICT - 679 322.** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.SAMSUDIN R3 BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **CRL.MC.NO.1340/2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX 1 COPY OF THE PRIVATE COMPLAINT FILED BY THE FIRST RESPONDENT. ANNEX II COPY OF THE JUDGMENT DATED 21/5/2014 IN WP(C).NO.31657/2013 ANNEX III TRUE COPY OF THE JUDGMENT REPORTED IN 2006 KHC 1639.** **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K.RAMAKRISHNAN, J.** ## **= = = = = = = = = = = = = Crl.M.C.No.1340 of 2016** ## **= = = = = = = = = = = = = = Dated this the 6th day of May, 2016** ## **O R D E R** This case is filed by the 2[nd] accused in S.T.No.2267/2013 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna to quash the proceedings as against him under section 482 of the Code of Criminal Procedure (herein after calls 'the Code'). 2. It is alleged in the petition that the 1[st] respondent herein filed a complaint under section 138 of the Negotiable Instruments Act (hereinafter calls 'the Act') against the 2[nd] respondent herein and also the present petitioner, who was the Secretary of the Society at the time when the monetary transaction had taken place between the petitioner and the society. Thereafter, the petitioner resigned from the society and since the resignation has not been accepted and no orders have been passed, he filed a petition before this court to consider his representation. As per Annexure-II order, 2 ## **Crl.M.C.No.1340 of 2016** this court directed the authorities to consider his representation and pass appropriate orders within a time bound manner. It is thereafter his resignation was accepted and an administrator was appointed. Since he was not the Secretary at the time when the offence was committed, taking cognizance of the complaint against him is unsustainable and so he has no other remedy except to approach this court to quash the proceedings as against him. Hence this petition. 3. Heard Sri.U.K. Devidas, learned counsel appearing for the petitioner, Sri. P.Shamsudheen, learned counsel appearing for the 1[st] respondent and Smt. Bindhu Gopinath, learned Public Prosecutor appearing for the State. 4. The counsel for the petitioner submitted that at the time when the alleged offence was committed, he was not the Secretary of the Society and the Administrator had taken charge of the Society. In view of the dictum laid down in the decision reported in **Kairali Marketing** 3 **Crl.M.C.No.1340 of 2016** **and Processing Cooperative Society Ltd. and Another v. Pullengadi Service Cooperative Society Ltd. and Another [2006 KHC 1639],** he cannot be proceeded against under Section 138 of the Act. The counsel for the petitioner also submitted that it is a matter of fact which can be ascertained from the information given by the 2[nd] respondent and as such it need not be relegated to the court below to consider those aspects. 5. On the other hand the counsel for the 1[st] respondent submitted that it is a matter for evidence and no document has been produced to prove as to when exactly the resignation has taken place and when the Administrator had taken charge etc. It is not a fit case to involve section 482 of the Code to quash the proceedings. 6. It is an admitted fact that on the basis of the cheque given by the 2[nd] respondent Society signed by the present petitioner as the Secretary of the 2[nd] respondent society, the Annexure 1 complaint was filed by the 1[st] 4 **Crl.M.C.No.1340 of 2016** respondent against the Society and the present petitioner in the capacity as the Secretary of the Society alleging offence under Section 138 of the Negotiable Instruments Act. There is no dispute regarding the proposition laid down in the decision reported in **Kairali Marketing and Processing Cooperative Society Ltd. and Another v. Pullengadi Service Cooperative Society Ltd. and Another [2006 KHC 1639].** But that was a case where the question was decided after evidence and on the basis of the evidence, it was revealed that at the time when the offence was alleged to have been committed, the alleged Secretary was not in charge of the day-to-day administration of the Society. It was disposed of on the basis of evidence and it was revealed that the person who drew the cheque was not the Secretary at the time when the cheque was dishonoured and notice was issued intimating the dishonour of the Cheque. Here, even as per Annexure II order, it cannot be revealed as to when the petitioner had filed the application for voluntary 5 **Crl.M.C.No.1340 of 2016** retirement or submitted his resignation, when it was accepted and when the Administrator had taken charge etc. All those things are matter for evidence. When things are to be proved on the basis of evidence, this Court cannot invoke the power under Section 482 of the Code to quash the proceedings as against the particular person and that is the matter to be decided on the basis of evidence by the trial court. 7. So under such circumstances, this Court feels that it is not a fit case to invoke the power under Section 482 of the Code to quash the proceedings as against the petitioner as claimed in the petition. However, considering the fact that the case is of the year 2013 and the complaint was filed under Section 138 of the Act, this Court feels that the petition can be disposed of directing the concerned Magistrate before whom the case is pending, to dispose of this case as expeditiously as possible, taking into consideration the contentions taken by the petitioner on the basis of evidence, and to dispose 6 **Crl.M.C.No.1340 of 2016** of the case at the earliest, at any rate, within six months from the date of receipt of a copy of this judgment. So the petition is disposed of as follows: (i) The relief for quashing the proceedings as claimed in the petition is declined. The Judicial First Class Magistrate No.1, Perinthalmanna, is directed to expedite disposal of S.T.No.2267/2013 as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. (ii) The petitioner shall appear before the Judicial First Class Magistrate No.1 Perinthalmanna, and move for regular bail after recalling the warrant, if any, pending against him in S.T.No.2267/2013, the court below is directed to consider and dispose of the bail application on the date of filing of the application itself, after hearing the counsel for the complainant appearing in the case and also considering the fact that the case is under Section 138 of the Negotiable Instruments Act, which is a bailable offence. 7 ## **Crl.M.C.No.1340 of 2016** With the above direction and observation, the petition is disposed of. Office is directed to communicate the judgment to the Court below at the earliest. **Sd/K.RAMAKRISHNAN, JUDGE** _rsr_