IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 CRL.MC.NO. 865 OF 2011() ----------------------------------------- CC.1093/2009 OF JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE PETITIONER(S): ACCUSED NO.4 & 5 --------------------------------------------------- 1. SUJITH, DIRECTOR, E-COMM COMPU SHOPPE LTD. C/O. K.V.MENON, A-5, INDRAPRASTHAM, KUMAR NAGAR, CHEVAYUR.P.O., CALICUT-17, (UNDER THE LIMITS OF MEDICAL COLLEGE, POLICE STATION) 2. SANDEEP, CHIEF EXECUTIVE OFFICER, E-COMM COMPU SHOPPE LTD.,C/O. SIVASANKARAN, PANDARAPARAMBU PARAMBA, KOTTOOLI.P.O., CALICUT. (UNDER THE LIMITS OF MEDICAL COLLEGE, POLICE STATION) (ADDRESS AS SHOWN IN THE COMPLAINT) BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR RESPONDENT(S): STATE & COMPLAINANT -------------------------------------------------------------- 1. ABDUL JABBAR.C.K., AGED 42 YEARS, S/O. C.K.MAMMU,'RARIRAM', BEYPORE, KOZHIKODE, REP. BY P/A. HOLDER BASHEER AHMED, S/O.ABDU RAHIMAN AGED 36 YEARS,"P.M.HOUSE", ST.VINCENTR COLONY, KALATHINKUNNU AMSOM DESOM KOZHIKODE TALUK. (NADAKKAVU POLICE STATION LIMIT) 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.865 of 2011 ==================================== Dated this the 18th day of March, 2011 O R D E R Petitioners are accused 4 and 5 in C.C. No.1093 of 2009 of the court of learned Judicial First Class Magistrate-IV, Kozhikode. That is a complaint filed under Section 138 of the Negotiable Instruments Act. According to the first respondent, first petitioner- 4th accused is the Director of a Company and the second petitioner-5th accused, is its Chief Executive. Petitioners seek to quash proceeding against them on two grounds: firstly, they had ceased to be Director/Chief Executive of the Company even prior to the alleged commission of offence and secondly, that the Company is not made a party in the proceeding. 2. Petitioners have relied on Annexures-1 and 2 to show that petitioners have resigned from the Company even before commission of the offence. Annexure-2 is a Certificate issued by a Chartered Accountant stating that the first petitioner resigned from the Company with effect from 02.04.2005. Annexure-3 is a letter from the Company stating that the second petitioner was relieved from employment on 31.01.2006. CRL.M.C. No.865 of 2011 -: 2 :- 3. Questions whether Annexures-2 and 3 are genuine and could be accepted and acted upon are not matters which this Court is required to decide under Section 482 of the Code of Criminal Procedure (for short, “the Code”) being disputed questions of fact. First respondent-complainant should get the opportunity to contend and if necessary lead evidence in support of his case. Trial court has to decide that question if reliance is placed on Annexures-2 and 3. 4. So far as the contention that since Company is not made a party, prosecution against petitioners is not maintainable is concerned, that also is a matter which the trial court has to decide. Learned counsel has also not addressed argument before me on the said contention. Paragraph 2 of the complaint contain an averment that petitioners were jointly looking after and were responsible for the affairs of the Company. It is for the trial court to decide whether the said allegation is correct or not. In the circumstances the request to quash proceeding under Sec.482 of the Code cannot be accepted. 5. Learned counsel submitted that petitioners are facing non- bailable warrants against them. Having regard to the circumstances stated by petitioners I am inclined to grant some time to the petitioners to appear in the trail court. CRL.M.C. No.865 of 2011 -: 3 :- Resultantly, Criminal Miscellaneous Case is dismissed without prejudice to the right of petitioners to take all their defences in the trial court. It is directed that non-bailable warrants issued to the petitioners will remain in abeyance for a period of three weeks from this day or till they appear before the learned Magistrate, whichever is earlier. If petitioners appear before learned Magistrate and move application for bail learned Magistrate shall consider the same having regard to the nature of the offence involved and pass appropriate orders expeditiously. THOMAS P. JOSEPH, JUDGE. vsv