IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 Crl.MC.No. 3509 of 2010() ------------------------- CC.732/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. .................... PETITIONER(S): A1 TO 5 (AS DESCRIBED IN THE COMPLAINANT): ------------------------------------------------------------------------------------------------- 1. INDO ARYA CENTRAL TRANSPORT LTD., 42/1223 A POWER HOUSE ROAD, ERNAKULAM , REPRESENTED BY SRI.C.D.MATHEW,AREA MANAGER. 2. RATHAN PRAKASH ARYA, MANAGING DIRECTOR, INDO ARYA CENTRAL TRANSPORT LTD., ARYALAYA, 147 TRANSPORT NAGAR,ROTHAK ROAD, NEW DELHI. 3. YOGESH ARYA, DIRECTOR, INDO ARYA CENTRAL TRANSPORT LTD., PRAKASHAN ROAD,RAM NAGAR, NEW DELHI. 4. DUSHYANTH ARYA, DIRECTOR, INDO ARYA CENTRAL TRANSPORT LTD., ARYALAYA, 147, TRANSPORT NAGAR,ROTHAK ROAD, NEW DELHI. 5. DAYANANTHA ARYA, DIRECTOR, INDO ARYA CENTRAL TRANSPORT LTD., TRIVOLI COURT, GREEN DOOR, GROPUND FLOOR, I.C.BALAGUNCH,CIRCULAR ROAD, KOLKOTHA. BY SRI. P.VIJAYABHANU, SENIOR ADVOCATE, BY ADVS. SRI.M.REVIKRISHNAN, SRI.VIPIN NARAYAN. RESPONDENT(S): --------------------------- 1. JOHNY PAUL, RUBBER DEALER, PAINGOTTOOR,KOTHAMANGALAM, ERNAKULAM DISTRICT,KERALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C No.3509 of 2010 -------------------------- Dated this the 14th October, 2010 O R D E R Petitioners are the accused in C.C No.732/2006 on the file of Judicial First Class Magistrate's Court, Kothamangalam. First petitioner is the company and petitioners 2 to 5 the Managing Director and Directors of the Company. Petition is filed under Section 482 of Cr.P.C to quash Annexure -A complaint filed by the 1st respondent and taken cognizance for the offence under Section 407 of Indian Penal Code. 2. Learned counsel appearing for the petitioners pointed out that by Annexure-C order in Crl.M.C No. 1652/2007 and connected cases, this Court has quashed an identical complaint filed against petitioners 2 to 5, the Managing Director and Directors on the ground that complaint does not disclose any allegation that petitioners 2 to 5 were in charge of and were responsible for the business of the 1st petitioner company and therefore cognizance taken against petitioners 2 to 5 is bad. 3. Learned counsel also pointed out that Crl.M.C Crl.M.C No.3509 of 2010 2 No.1655/2007 filed earlier was dismissed as withdrawn and in the light of Annexure-C order, cognizance taken against petitioners 2 to 5 is to be quashed. Though notice was served on the 1st respondent he did not appear. 4. Crl.MC No.1655/2007 was filed by the petitioners for the same relief. By order dated 29.5.2007, Crl.M.C was dismissed as withdrawn. The order shows that after discussions at the Bar, learned counsel for the petitioners sought permission to withdraw the Crl.M.Cs without prejudice to their rights to raise all relevant contentions before the learned Magistrate at the appropriate stage. In the light of that order, petitioners are not entitled to seek the same relief once again before this Court, when the earlier petition filed was withdrawn with liberty to approach the learned Magistrate and to raise the contentions therein. Petitioners are entitled to seek an order of discharge under Section 239 of Cr.P.C in the light of Annexure-C order as the complaint does not disclose any allegation against petitioners 2 to 5 to the effect that they were either in charge of or responsible to Crl.M.C No.3509 of 2010 3 the business of the 1st petitioner company. Learned counsel submitted that presence of the petitioner may not be insisted for the purpose of claiming discharge under Section 245 (1) of Cr.P.C. In the light of Annexure-C order. if the petitioner files an application before the learned Magistrate to hear and dispose the application for discharge by dispensing his presence, learned Magistrate not to insist for his personal appearance. If any non- bailable warrant is pending and petitioner files an application to withdraw the non-bailable warrant on the facts and circumstances of the case, learned magistrate to grant bail. Petition is disposed of. M.SASIDHARAN NAMBIAR JUDGE ma