IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Crl.MC.No. 1304 of 2005 ------------------------- ST.365/2004 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER: ACCUSED NOS.3 AND 4 ------------------------------- 1. SMT.FATHIMA BEEGUM, ACCOUNTS OFFICER, KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE, THIRUVANANTHAPURAM. 2. SRI.RAJEEV, CASHIER, KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.S.SURESH RESPONDENTS: COMPLAINANT ------------------------ 1. SRI.JOY THATTIL, S/O. PAVUNNI, AGED 53 YEARS, RESIDING AT JOYES DALE, THEVALLY NAGAR, KOLLAM AND NOW RESIDING AT JOYES DALE, THALORE P.O., THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTORMR. SALIM P.A. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A. NOS. 5463 & 9893/2005 IN CRL.M.C. NO. 1304/2005 DISMISSED. 5-8-2008 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 1304 of 2005 ======================= Dated this the 5th day of August 2008 ORDER The petitioners herein are accused Nos. 3 and 4 respectively in S.T.No. 365/2004 on the file of the Chief Judicial Magistrate Court, Kollam. The offence alleged against them and two other accused was under Section 138 read with Section 141 of the Negotiable Instruments Act which was registered against them on the basis of the private complaint filed by the first respondent herein, copy of which is produced as Annexure-A. The first respondent also filed a suit for realisation of the amount due under the bounced cheque against accused Nos. 1 and 2 and the Manager of the first accused company as defendants 1 to 3 before the Sub Court, Kollam as O.S.No.273/2004. Copy of the plaint is produced as Annexure-C. Annexure-B is produced along with this petition to reveal that the amount claimed in the suit O.S.No.273 of 2004 has been deposited before the Sub Court, CRMC. 1304/2005 -2- Kollam and obtained the receipt on 27-11-2004. This petition is filed on 20-4-2005 before this Court under Section 482 of the Code of Criminal Procedure to quash Annexure-A complaint against the petitioners, who are accused Nos.3 and 4 before the Magistrate's court. No appearance was made by the first respondent/complainant before this Court, though notice was served on him in person. 2. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioners that the petitioners were implicated as accused Nos.3 and 4 in the complaint, Annexure-A as the Accounts Officer and the Cashier of the Kerala State Audio Visual and Reprographic Centre, Thiruvananthapuram. Accused Nos.1 and 2 in that complaint were the Company and the Managing Director respectively. According to the learned counsel, there is no specific allegations in the complaint against the petitioners herein to cast a criminal liability on them in the matter of issuance of cheque which was bounced in the present case. Even according to the first respondent/complainant, the petitioners were the employees CRMC. 1304/2005 -3- of the first accused company and have no control or charge over the day to day affairs of the company. The alleged cheque was issued to the complainant even according to the first respondent as revealed from Annexure-A towards the rent due from the company and the company and its Managing Director were in charge for the conduct of the business of the company and day to day affairs. The petitioners were not the signatories in the cheque and hence no liability to the petitioners 1 and 2 as accused 3 and 4 as complained by the first respondent in Annexure-A complaint. The learned counsel has relied on the decision reported in N.K. Wahi v. Shekhar Singh, (2007)9 S.C.C.481 wherein it is specifically held that it is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and also has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. Considering the dictum laid down in the above decision and on a perusal of CRMC. 1304/2005 -4- Annexure-A complaint, I find that no averments are there against accused Nos.3 and 4 in the complaint which is sought to be quashed in this petition. In the absence of such averments or allegations against the petitioners that complaint against accused 3 and 4 is liable to be quashed. In the result, the Crl.M.C. is allowed and Annexure-A complaint in S.T.No.365/2004 pending before the Chief Judicial Magistrate's Court, Kollam as against the petitioners/accused 3 and 4 is quashed. Sd/- M.C. HARI RANI JUDGE ks.