IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Crl.MC.No. 1513 of 2010() ------------------------- S.T. NO.470 OF 2010 OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. .................... PETITIONER(S)/ACCUSED ------------------------------------- 1. BHAGEERATHI BAI, W/O.KARBASAPPA KAPADE, PLOT NO.74, KAVERI NAGAR, G.D.A.ROAD, GULBARGA, STATE OF KARNATAKA. 2. PRAKASH SIVA SARMA, PLOT NO.74, KAVERI NAGAR, G.D.A.ROAD, GULBARGA, STATE OF KARNATAKA. 3. MAHESH KAPADE, S/O.KARBASAPPA KAPADE, PLOT NO.74, KAVERI NAGAR, G.D.A.ROAD, GULBARGA, STATE OF KARNATAKA. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. PURE PETRO CHEM INDIA (P) LTD., PANTA CITY TOWER, KILLIPPALAM, THIRUVANANTHAPURAM, REP. BY K.P.PADMA KUMAR, MANAGING DIRECTOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.D.AJITHKUMAR SMT.LALIZA.T.Y. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK Crl.MC.No. 1513 of 2010() ------------------------------------ APPENDIX --------------- PETITIONER'S ANNXURES ------------------------------------- ANNEXURE 1. COPY OF THE COMPLAINT NUMBERED AS S.T. NO.470/2010 (ORIGINALLY CMP NO.8211/2008 DATED 09.06.2008 TAKEN ON FILE AS S.T. NO.470/2010) FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONERS DATED 09.06.2008. ANNEXURE 2. COPY OF THE CERTIFICATE ISSUED BY THE COMMERCIAL TAX OFFICER, GULBARGA DATED 19.06.2009. ANNEXURE 3 . COPY OF HE AGREEMENT DATED 21.06.2O07 CENTERED BETWEEN THE COMPLAINANTS AND THE ACCUSED COMPANY. ANNEXURE 4. COPY OF THE CERTIFICATE ISSUED BY SYNDICATE BANK, STATION BAZAR, GULBARGA DATED 20.10.2010 ANNEXURE 5. COPY OF THE CERTIFICATE ISSUED BY ASSISTANT COMMISSIONER OF COMMERCIAL TAXES DATED 10.04.2007. ANNEXURE 6. COPY OF THE LICENCE ISSUED BY GULBARGA CITY CORPORATION. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE CPY / P.A. TO JUDGE VK N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C. 1513 of 2010 ------------------------------------------ Dated this the 20th day of October, 2011 O R D E R The learned counsel for the first respondent/complainant submits that the names of 4th and 5th accused shown in the complaint were subsequently deleted. Therefore, what remains for consideration in this Crl.M.C. is only with regard to the 3rd accused – Smt. Bhageerathi Bai. The complaint was filed by the first respondent under Sec.138 of N.I. Act. The first accused therein is a company and 2nd accused is the person who was stated to have signed the cheque in question, is the case pleaded by the complainant. The 3rd accused according to the complainant is the person in charge of and responsible to the conduct of the business of the first accused company. The learned counsel for the complainant draws the attention of this Court to Ext.R1 (a) which is the letter sent by the petitioner (A3) to the Manager of the concerned bank which shows that she was the proprietor of the concern and that she is responsible for all transactions Crl.M.C. 1513 of 2010 2 entered into and obligations incurred with the bank. So much so, there is material to proceed against the petitioner (3rd accused) before the court below, the learned counsel for the first respondent submits. This submission is resisted by the learned counsel for the petitioner. 2. The learned counsel for A3 stated that Annexure – 2 issued from Commercial Taxes Dept, Govt. of Karnataka would show that M/s. Sarada Auto Stores, Humanabad Road, Nehru Gunj, Gulbarba is the sole proprietorship concern. The learned counsel would also rely upon Annexure – 3 which is an agreement between the complainant and M/s. Sarada Auto Stores which would show that A2, Ragabendra Kabadac alone was responsible for the issuance of the cheques mentioned therein. Page No.2 of Annexure – 3 refers to the cheqes bearing Nos.942146 and 942148 which are the subject matter of the complaint in this case and that also would show that A2 Crl.M.C. 1513 of 2010 3 alone was responsible for the business of the proprietorship concern. In other words, according to the learned counsel, the 2nd respondent, who is the proprietor of that concern alone can be made liable as there is no firm or company as alleged by the complainant. The learned counsel further relied upon Annexure – 4, the certificate dated 20/10/10 issued by Syndicate Bank which also would show that A2 is the sole proprietor of M/s. Sarada Auto Stores mentioned earlier. The learned counsel for the complainant submits that Annexure – 4 is of the year 2010 whereas the cheques were issued in the year 2007. In this connection the learned counsel for the accused relies upon Annexure – 5 and 6, the certificate issued by the Commercial Taxes (VAT) of Karnataka Government which shows that the certificate was valid from 01.04.05 until cancelled. That certificate was issued to M/s. Sarada Auto Stores where the second accused is shown as the proprietor. Annexure – 6 also Crl.M.C. 1513 of 2010 4 shows that the license was issued in the name of A2 as the proprietor of M/s. Sarada Auto Stores which was for the period from 01.04.2005 to 31.03.2006. The learned counsel for the petitioner also contends that in respect of another cheque also, there was a case as ST No.574/08. There also same question was considered by this court. (See the order in Crl.M.C. No.2288/09.) It is submitted by the learned counsel for the complainant that when Crl.M.C. 2288/09 was considered, Annexure – R1(a) dated on 16.11.2005 was not produced and so, that order is not applicable to the facts of this case. Therefore, on that ground the earlier case can be distinguished, it is argued. Since the second accused, the proprietor of M/s. Sarada Auto Stores has not challenged the cognizance taken against him, it is not necessary to probe further into other aspects. Going by the documents available, it could be seen that M/s. Sarada Auto Stores is only a proprietor ship concern of which the second Crl.M.C. 1513 of 2010 5 accused is the sole proprietor. No document was produced by the complainant along with Crl.M.C.2117/10, at the time of enquiry to show that it was a firm and A3 was a partner or that she was in charge of or control of the business of M/s. Sarada Auto Stores. 3. The second accused is the son of the 3rd accused. It was argued by the learned counsel for the 3rd accused that she is aged more than 80 years. It is further argued that when the second respondent is there to own the liability as he is the proprietor of M/s. Sarada Auto Stores there is no necessity to proceed against the 3rd accused. As of now there is no material to hold that M/s. Sarada Auto Stores was a partnership firm or to hold that at the relevant time during the year 2007, A3 was in charge of the business concern. Hence the case against A3 cannot be proceeded against. But it is made clear that in the course of evidence the second accused puts forth a contention that it was in Crl.M.C. 1513 of 2010 6 fact A3 who was responsible for the conduct of the business at the relevant time and if A2 tries to escape from the liability and if the learned Magistrate finds that A3 is in fact liable to be proceeded against, then the learned Magistrate can again implead the petitioner (A3) . In other words, the order of quashment of the case against A3 is only to the extent indicated earlier. This petition is disposed of accordingly. N.K. BALAKRISHNAN, JUDGE smvd