IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.MC.No. 2879 of 2009() ------------------------- CC.199/2007 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), ERNAKULAM .................... PETITIONER(S): --------------- SABI.M.B,PARTNER,M/S.HABS AQUA SERVICES, DEVAGIRI,MAYYANAD.P.O,KOLLAM-691303. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- 1. M/S.HIGASHIMARU FEEDS (INDIA)LTD, REGISTERED OFFICE,AMALGAM HOUSE,BRISTOW ROAD, WILLINGTON ISLAND,COCHIN-682003,REP.BY ITS FINANCE MANAGER AND AUTHORISED SIGNATORY MR.C.SREEKUMAR. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI SRI.JOSEPH KODIANTHARA FOR R1 SRI.MATHEWS K.UTHUPPACHAN FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2879 OF 2009 ------------------------------------------ Dated 14th October 2009 O R D E R Petitioner is the third accused in C.C.199/2007 on the file of Judicial First Class Magistrate-III, (Mobile Court), Ernakulam taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-2 complaint filed by first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that petitioner is not a signatory to the dishonoured cheque and he was implicated only for the reason that he is a partner of the firm and in the absence of an allegation that petitioner is in charge and responsible for the affairs of the firm, no offence would lie. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Annexure-2 complaint itself establishes that first accused is a partnership firm and second accused is its Managing partner and petitioner is only one of the partners. Paragraph 2 of the complaint specifically alleges that first and second accused CRMC 2879/09 2 are in charge and responsible and liable to the day- to-day affairs of the firm. In paragraph 5, it is stated that complainant issued a notice dated 9/10/2003 to accused 1 and 2 by registered post with acknowledgment due and also under certificate of posting and notice was accepted and no reply was sent and no payment was made. In the light of the allegations in Annexure-2 complaint, when there is no case that petitioner was a signatory to the dishonoured cheque or that the cheque was issued by the second accused for and on behalf of the petitioner with his knowledge or that petitioner was in charge and responsible for the affairs of the firm, learned Magistrate cannot take cognizance of the offence as against the petitioner. It is more so, when complaint specifically alleges that it is second accused, the Managing Partner, who is responsible and in charge of the affairs of the firm. Therefore, proceeding as against petitioner is only abuse of process of court. Petition is allowed. C.C.199/2007 on the file of Judicial First Class Magistrate-III, (Mobile court), Ernakulam as against petitioner is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.