IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 Crl.Rev.Pet.No. 531 of 2004() ----------------------------- CRMP.66/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... PETITIONER(S): COMPLAINANT: -------------------------------------------------- AVEES ENTERPRISES, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.P.VARGHESE, KOLUTHARA NADAKKAL, WARD NO.3, CHERTHALA MUNICIPALITY. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA. RESPONDENT(S): STATE AND 3RD ACCUSED IN CRL.MP.NO.66/2004: ------------------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, ERNAKULAM, KOCHI-31. 2. PRABHA BABU, (PARTNER) DIVILA MARINE EXPORTERS, RESIDING AT 'PRABHA', ERATTAKULANGARA ROAD, PACHALAM, KOCHI, PIN-682 012. R1 BY PUBLIC PROSECUTOR MR. I.V.PRAMOD R2 BY ADV. MR.PREMJIT NAGENDRAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.531 of 2004. = = = = = = = = = = = = = Dated this the 9th day of March, 2010. O R D E R The revision petitioner is the complainant in Crl.M.P.No.66/2004, which is a complaint filed under Section 138 of the Negotiable Instruments Act. There are three accused. First accused is a firm. Second accused is the Managing Partner and the third accused is one of the partners. It is alleged in the complaint that the 2nd and 3rd accused approached the revision petitioner on 1.8.2003 and availed a loan of Rs.1,50,000/-, for the discharge of which a cheque dated 30.8.2003 drawn on an account maintained by the firm and signed by the 2nd accused was issued and that when the cheque was sent for collection it was returned bounced for insufficiency of funds and that the notice issued to the first and second accused returned as Crl.R.P.No.531 of 2004. -: 2 :- refused. The 3rd accused who acknowledged the notice sent a reply with untenable contentions and that the liability was not discharged. 2. By the order impugned dated 13.1.2004, the learned Magistrate took cognizance as against the first and second accused. Cognizance was not taken as against the 3rd accused. Assailing the legality, correctness and propriety of the order refusing to take cognizance as against the 3rd accused, this revision petition was filed. 3. Though, there is pleadings in the complaint that 2nd and 3rd accused approached the revision petitioner and availed a loan for the return of which the cheque drawn on an account maintained by the firm and signed by the 2nd accused was issued, there is no mention in the complaint that the 3rd accused was responsible to the firm for the conduct of the business. In the affidavit filed along with the Crl.R.P.No.531 of 2004. -: 3 :- complaint also, there is no such mention. It is for that reason the learned Magistrate refused to take cognizance as against the 3rd accused. That finding is in tune with Section 141 of the Negotiable Instruments Act which reads as follows: “141. Offences by companies:- (1) 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 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: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by Crl.R.P.No.531 of 2004. -: 4 :- the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 4. The learned counsel for the revision petitioner canvassed my attention to the decision reported in Green Sea Marine v. Anty (2008(3) KLT 290). It is also relating to an identical offence. In para.20, the learned Judge had held as follows: “[S]o much so, the plea of accused persons 2 and 3 that there is insufficiency of pleadings in the complaint to attract the provisions of S.141 of the N.I.Act is liable to be rejected”. Crl.R.P.No.531 of 2004. -: 5 :- 5. Having a careful scrutiny of the pleadings in the complaint as well as in the affidavit, I find that the ratio of the above decision cannot be applied to the case on hand for the reason that there is omission to plead that the 3rd accused is responsible for the conduct of the business of the firm. In the reported case, all the partners had signed the cheque. In this case the 3rd accused had not signed the cheque. Revision petitioner seeks to prosecute the 3rd accused with an allegation that she was a partner of the firm and she had also requested for loan. That is not at all a reason to prosecute her. There may be civil liabilities as partner. But, with the pleadings on record, in the light of Sec.141 of the Negotiable Instruments Act, I find no reason to prosecute her for offence under Sec.138 of the Negotiable Instruments Act. In the above circumstance, I find that the learned Magistrate was correct in refusing to Crl.R.P.No.531 of 2004. -: 6 :- take cognizance as against the 3rd accused. I fail to find that there is any illegality, error or impropriety in refusing to take cognizance against the 3rd accused. 6. The learned counsel for the revision petitioner had sought permission to give an opportunity to the revision petitioner to make necessary amendment in the complaint to implicate the 3rd accused. Being a criminal prosecution and the revision arising out of a refusal to take cognizance, I find that the revision petition is to be disposed with the materials on record. Irrespective of the civil liability of the 3rd accused, as a partner of the firm, I find no merit in the revision petition and it is dismissed. 7. I fail to find any provision in the Code of Criminal Procedure to allow amendment of the pleadings in the complaint, which otherwise are not sufficient enough to take cognizance against the 3rd accused, that too after a Crl.R.P.No.531 of 2004. -: 7 :- lapse of more than six years. In the above circumstance, the oral request for permission to amend the complaint at this stage is disallowed. P.S.GOPINATHAN (Judge) Kvs/-