IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 3307 of 2008() ---------------------------------- CC.1505/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER(S): 3RD ACCUSED ----------------------- PADMINI W/O. RAMAKRISHNAN, KARUMATHIL HOUSE PERUVALLUR DESOM, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) RESPONDENT(S): COMPLAINANT ------------------------ 1. PUSHKARAN S/O. NEELAMPILLI KUNHUNNI, PURANATTUKARA VILLAGE DESOM, THRISSUR TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SMT.M.M.DEEPA FOR R1 SRI.JAYKAR.K.S. FOR R1 SRI.K.RAVI (PARIYARATH) FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/01/2009, ALONG WITH CRMC NO. 3308 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.Nos.3307 & 3308 of 2008 ---------------------------------------- Dated this the 21st day of January 2009 O R D E R The petitioner faces indictment in two separate prosecutions both under Section 138 of the Negotiable Instruments Act. The complaint has been lodged by different complainants. There are three accused in both these prosecutions. The 1st accused is the partnership firm. The 2nd accused is the managing partner of the said firm who alone has signed the cheque on behalf of the 1st accused firm. The petitioner is the 3rd accused. She has not signed the cheque. It is alleged that she is a partner of the firm. In the reply to the notice of demand, she had taken a stand that she was not actually a partner of the firm. Cognizance has been taken by the learned Magistrate. Proceedings are pending before the court below. Trial has not commenced. At this stage, the petitioner, a woman, has come to this court with the grievance that cognizance taken against her is totally unjustified and bad in law. The learned counsel for the petitioner specifically contends that the necessary and required averments to satisfy Section 141 Crl.M.C.Nos.3307 & 3308/08 2 of the N.I.Act as explained in SMS Pharmaceuticals(P)Ltd. v. Neeta Bhalla [(2005)8 SCC 89] are not there in the relevant complaints. I have been taken through the complaint. It is significant to note that there is no specific averment that the petitioner was ever in charge of and responsible for the 1st accused firm for the conduct of its affairs. It is now trite after the decision in SMS Pharmaceuticals (Supra) that in the absence of such averments, an indictee cannot mulcted with liability under Section 141 of the N.I.Act. The averments in the complaint do not at all show that the petitioner was in charge and responsible to the 1st accused firm for the conduct of its affairs at the relevant time. 2. The respondent/complainant is represented by a counsel in Crl.M.C.No.3307/2008; but in Crl.M.C.No.3308/08, though served, the respondent has not entered appearance. I am satisfied, in these circumstances, that both these prosecutions have no legs to stand on in the absence of crucial and vital averments required to attract applicability of Section 141 of the N.I.Act as explained in SMS Pharmaceuticals (Supra). Crl.M.C.Nos.3307 & 3308/08 3 3. In the result, a) This Crl.M.C is allowed. b) Prosecution initiated as C.C.No.1505/04 and 3407/04 both pending before the learned J.F.C.M Kunnamkulam and J.F.C.M-III, Thrissur respectively are hereby quashed in so far as it relates to the petitioner herein. (R.BASANT, JUDGE) jsr Crl.M.C.Nos.3307 & 3308/08 4 Crl.M.C.Nos.3307 & 3308/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008