IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.MC.No. 411 of 2005() ------------------------ CC.601/2002 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): --------------- 1. HYDEL CORPORATION, DELUX TOWER, LOGANS ROAD, TELLICHERY, KANNUR-670 101, REPRESENTED BY ITS PARTNER. 2. MAHAMOOD, PARTNER, HYDEL CORPORATION, DELUX TOWER, LOGANS ROAD, TELLICHERY, KANNUR-670 101. BY ADV. SRI.T.M.ABDUL LATHEEF SRI.P.M.SHAMEER RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.VIJAY & CO., NO.50/772 B, CHENNANKULANGARA ROAD, CHUTTUPADUKARA, PONEKKARA, EDAPPALLY, COCHIN 24, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER H.GABRIEL, BRANCH MANAGER, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW. SRI.O.F.JUSTIN FOR R2 SRI.ANTONY MUKKATH FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.M.C. No.411 of 2005 ----------------------------------------------- Dated 3rd day of January, 2008. O R D E R This petition is filed to quash the entire proceedings initiated against petitioners on the basis of a complaint filed by second respondent alleging offence under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). The petitioners are a firm and its partner. 2. As per the allegations in the complaint, the “accused” purchased materials from the complainant and towards discharge of the debt, accused issued a cheque for an amount of Rs.29,120/- in favour of the complainant drawn on Union Bank of India. On presentation of the cheque with the Bank, it was returned with an endorsement “exceeds arrangement”. A notice was issued to the second petitioner demanding payment of the amount. But no reply was sent and hence after complying with the formalities under the Act, a complaint was filed against the petitioners. 3. Petitioners seek to quash the complaint on various grounds. According to the petitioners, there is no averment in Annexure A1 complaint to the effect that the firm was carrying Crl.M.C.No.411/05 2 on a business and the second petitioner was in charge of the business of the firm at the time when the cheque was issued. So the complaint is not maintainable. 4. Learned counsel appearing for the 2nd respondent submitted that this case was filed as early as in 2002 and the case was being proceeded with for a long time, till 2005. When the proof affidavit was filed by the complainant, in lieu of chief examination, this petition is filed to quash the entire proceedings. It was also submitted that it is made clear in the proof affidavit that the accused is a partnership firm and the cheque was issued by the second petitioner on behalf of the firm. Though a lawyer notice was issued to the second petitioner, no reply was sent, raising the present contention, it is submitted. 5. It is true that the complainant made it clear in the proof affidavit that the cheque was drawn by the firm and the cheque shows that it was drawn on behalf of the firm by the partner. But, neither in the complaint nor in the proof affidavit, Crl.M.C.No.411/05 3 it is mentioned whether the second petitioner who issued the cheque on behalf of the firm was responsible or was in charge of the business of the firm at the time when the cheque was drawn. 6. In the complaint, it is only vaguely stated that “accused” had drawn the cheque, though two persons are shown in the array of accused. Which accused is the drawer, has not been mentioned in the complaint. However, when a notice was issued as Annexure A4, the complainant made allegation against second petitioner that he issued a cheque towards settlement of dues payable to the complainant. 7. The copy of the cheque will go to show that the cheque was issued on behalf of the firm and it appears that the account is maintained by the firm and not by the second petitioner personally. Section 141 of the Act lays down that “if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the Crl.M.C.No.411/05 4 company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.” 8. Therefore, if the cheque is drawn on an account maintained by the firm, and if the partner has signed the cheque on behalf of the firm, the firm as well as the person in charge and responsible to the firm for the conduct of the business at the time of issuance of such cheque will be guilty of the offence under Section 138 of the Act. Of course, there is a lack of clarity in the allegations in the complaint and in the proof affidavit regarding the role of the individual(accused). 9. Yet on going through the available materials, it cannot be said that the court below has seriously erred in proceeding against petitioners. The question whether they are actually involved in the offence or not is a matter of evidence. In such circumstances, I find that prayer made in the belated petition need not be entertained at this stage. All the Crl.M.C.No.411/05 5 contentions raised by petitioners can be raised before the trial court itself. I do not find any ground to interfere under Section 482 Cr.P.C. at this stage. Petition is therefore, dismissed. K.HEMA, JUDGE. mrcs