IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 2893 of 2008() ------------------------- ST.1810/2007 of CHIEF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PALAKKAD .................... PETITIONERS/ ACCUSED NOS.2 AND 3 -------------------------------------------------------- SATHEESH CHANDRAN, AGED 54 YEARS, PROPRIETOR - FORMER, ECOTECH ENGINEERS, S/O.K.P.G.MENON, KANDATH HOUSE, KUNISSERY, PALAKKAD, PRESENTLY RESIDING AT NO.5, RAMAIHA COLONY, BENGLOW STREET, TIRUPUR. *P2. SMT. SANTHA KUMARI KANDOTH HOUSE KURISERY, PALAKKAD ADDITIONAL P2 IS IMPLEADED AS PER ORDER DATED 6.8.2008 IN CRLM.A. 4218/08 IN CRL.M.C. NO.2893/08 BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENTS: ----------------------- 1. MURALEEDHARAN, AGED 42 YEARS, S/O.KRISHNANKUTTY, THAZHATHU HOUSE, KANNANUR, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- CRL.M.C. No. 2893 OF 2008 -------------------------- Dated this the 10th day of March, 2010 O R D E R Petitioners are the accused and first respondent the defacto complainant in S.T. No.1810 of 2007 on the file of the Judicial First Class Magistrate-II, Palakkad taken cognizance for the offence under Section 138 of the Negotiable Instruments Act on Annexure-A2 complaint. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings as against the second petitioner, the wife of the first petitioner. Though originally the petition was filed only by the husband, later the wife was impleaded as the second petitioner. The case of the petitioners is that the second petitioner was implicated only because she is the wife of the first petitioner and as the allegation in Annexure-A2 complaint ingredients of an offence as against the second petitioner is not attracted and hence the case is to be quashed. 2. Learned counsel appearing for the petitioners, first respondent and learned Public Prosecutor were heard. 3. Annexure-A2 complaint shows that the allegations of the first respondent in the complaint is that petitioners husband and wife approached him and borrowed Rs.50,000/- in the name of the first Crl.M.C. No.2893/08 2 accused Ecotech Engineers and the first petitioner is the proprietor and second petitioner is the manager of the first accused. Though in para 1 after stating that the first petitioner is the proprietor, it is also alleged that the first accused is a firm. If the first accused is a firm, first petitioner cannot be the proprietor as he could either be one of the partners or the managing partner. First respondent has no case that the second petitioner is a partner of the firm, Annexure-A5 dishonoured cheque shows that it was the first petitioner who issued the cheque on behalf of the first accused, in his capacity as its proprietor. Therefore it is clear that the first accused is not a partnership firm but is only a proprietary concern. If that be so, unless the second petitioner is a signatory to the dishonoured cheque, she cannot be prosecuted for an offence under Section 138 of the Negotiable Instruments Act. Provisions of Section 141 of the Negotiable Instruments Act can be made applicable only if the first accused is either a company or a partnership firm. So long as the first accused is a proprietary concern and the dishonoured cheque was issued by the first petitioner in his capacity as the proprietor of the proprietary concern, no offence under Section 138 is attracted as Crl.M.C. No.2893/08 3 against the second petitioner. Continuation of proceedings as against the second petitioner is clearly an abuse of process of court. Though the learned counsel for the first respondent argued that the complaint shows allegations of commission of an offence under Section 420 of Indian Penal Code also, I find that there was no proper allegation to take cognizance of offence under Section 420. The only allegation in the complaint is that the accused committed offence under Section 138 of Negotiable Instruments Act. Moreover, learned Magistrate has taken cognizance of only the offence under Section 138 of the Negotiable Instruments Act. As the second petitioner cannot be tried for that offence, the cognizance taken against her can only be quashed. Petition allowed. S.T. No.1810 of 2007 on the file of the Judicial First Class Magistrate-II, Palakkad as against the third accused is quashed. The learned Magistrate is directed to proceed with the complaint against the other accused. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl.M.C. No.2893/08 4