IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Crl.MC.No. 3431 of 2009() ------------------------- CC.714/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER/5TH ACCUSED IN CC.714/08 OF JFCM,KUNNAMKULAM ------------------------------------------------------------------------------------------------ B. SRIDHAR, S/O.BALAKRISHNAN, "KOUNDANYA HOUSE", POOTHOLE, THRISSUR. BY ADV. MR.N.K.SUBRAMANIAN RESPONDENTS 1&2/COMPLAINANT IN CC.714/08, JFCM,KUNNAMKULAM/NOT A PARTY ----------------------------------------------------------------------- 1. K.V. THOMAS, S/O.VARUTHUNNI, KUTTIKAT HOUSE, VELUR P.O.,VADAKKUMURY, VELUR VILLAGE,THALPPILLY TALUK,THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.K.J. MUHAMMED ANSAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3431 OF 2009 =========================== Dated this the 13th day of November,2009 ORDER Petitioner is the fifth accused in C.C..714/2008 on the file of Judicial First Class Magistrate Court, Kunnamkulam taken cognizance for the offence under section 138 of Negotiable Instruments Act on Annexure A complaint filed by the first respondent. 2. Though notice was served on the first respondent, he did not appear. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Annexure A complaint shows that petitioner, the fifth accused is implicated in the case only on the ground that he was one among the Directors, along with accused 3,4,6 and 7, and he was also responsible to the Crl.M.C.3431/2009 2 Company in the conduct of its business and therefore for issuance of cheque its dishonour and non payment when demanded petitioner is also responsible and therefore he committed the offence. This petition is filed contending that petitioner ceased to be a Director of the Company with effect from 28.6.2006 as held by this court in Crl.M.C.2751/2008 and connected cases dated 7.8.2009. The dishonoured cheques in this case was issued on 10.5.2007, 25.4.2007 and were dishonoured on 5.10.2007 and the amount covered by the dishonoured cheques were demanded on 2.11.2007. All these incidents occured subsequent to the cessation of the petitioner as the Director of the Company. Therefore prosecution of the petitioner for the offence under Section 138 of Negotiable Instruments Act is not sustainable. 5. This court in Crl.M.C.2751/2008 and connected cases found on identical facts that as petitioner was not the Director of the Company Crl.M.C.3431/2009 3 subsequent to 28.6.2006, he cannot be held liable either for issuance of the cheques or their dishonour or for the failure to pay the amount when demanded. Therefore continuation of the proceedings for the offence under section 138 of Negotiable Instruments Act, as against the petitioner is only an abuse of process of the court. That squarely applies in this case also. Hence the proceedings is liable to be quashed as against the petitioner. Petition is allowed. C.C.714/2008 of Judicial First Class Magistrate’s Court, Kunnamkulam as against the petitioner the fifth accused is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006