IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.MC.No. 1481 of 2008() ------------------------- ST.145/2007 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER(S): ACCUSED NO.4 & 5: -------------------------------- 1. SRI.K.C. VARGHESE, KARIKKINETH HOUSE, AMAYANOOR P.O., AYARKUNNAM. 2. SMT. REENA VARGHESE, W/O. VARGHESE, KARIKKINETH HOUSE, AMAYANOOR P.O., AYARKUNNAM. BY ADV. SRI.K.T.THOMAS SRI.HARISH ABRAHAM RESPONDENT(S): COMPLAINANT/ACCUSED NOS.1 TO 3 & 6: -------------------------------------------------- 1. SHAMSON PHILIP, CHIRRATTEPARAMBIL, AYAMANOOR P.O. AYARKUNNAM. 2. ST. JUDE EDUCATIONAL & CHARITABLE TRUST, AMAYANOOR P.O., AYARKUNNAM, REPRESENTED BY ITS MANAGING TRUSTEE FR.DR.C.G.MATHEW. 3. FR.DR.C.G.MATHEW, CHAIRMAN & MANAGING TRUSTEE, ST.JUDE EDUCATIONAL & CHARITABLE TRUST, AMAYANOOR P.O., AYARKUNNAM. 4. K.MANI, ORAVACKEL HOUSE, AMAYANNOOR P.O., AYARKUNNAM. 5. C.G. VARGHESE, KARIKKINETH, COLLEGE ROAD, CHANGANASSERY. 6. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.P.MADHAVANKUTTY FOR R1 ADV. SRI.RAJESH VIJAYENDRAN FOR R2-3 R6 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 1481 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2008 O R D E R The petitioners, along with the co-accused, face indictment in a prosecution under Section 138 r/w. 141 of the N.I. Act as accused 4 and 5. They are admittedly not signatories in the cheque. The first accused is a Trust. It is alleged that the second accused had signed the cheque on behalf of the Trust and had handed over the same to the complainant for the due discharge of a legally enforceable debt/liability. So far as the petitioners are concerned, in the complaint no specific allegations are raised. Only paragraph 2 of the complaint refers to the petitioners. I extract the same below: “2. The 1st accused is a registered Trust. The 2nd accused is the Chairman and Managing Trustee of the Trust and the 3rd, 4th, 5th and 6th accused are the members of the Board of Trustees of the Trust.” 2. The learned counsel for the petitioners submits that in the wake of Section 141 of the N.I. Act and the decision of the three Bench Judge of the Supreme Court in S.M.S. Crl.M.C.No. 1481 of 2008 2 Pharmaceuticals Ltd. v. Neeta Bhalla (2005 (4) KLT 209 (SC) the above averments in paragraph 2 are totally insufficient to attract culpability against the petitioners and they are entitled to have the prosecution against them quashed. 3. The learned counsel for respondents 2 and 3 (A1 and A2) advanced a contention that the cheque was not issued on behalf of the second accused at all. Be that as it may, it is not necessary for me to go into that question in any greater detail in this Crl.M.C. In the total absence of even an averment that the petitioners are in charge of and responsible to the first respondent Trust for the conduct of its affairs, I am satisfied that following the dictum in S.M.S. Pharmaceuticals Ltd (supra) the prosecution in so far as it relates to the petitioners does deserve to be quashed. No contentions to the contra are urged before me. 4. This Crl.M.C. is accordingly allowed. S.T. 145 of 2007 pending before the J.F.M.C.-III, Kottayam in so far as it relates to the petitioners (A4 and A5) is hereby quashed. (R. BASANT) Judge tm Crl.M.C.No. 1481 of 2008 3