IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 Crl.MC.No. 515 of 2010() ----------------------------------- ST.84/2009 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE. .................... PETITIONER/4TH ACCUSED ----------------------------------------- REVI POTTATHIL, S/O.LATE P.K.P.NAIR, CHANDRA VILLA, THIRUVANNUR.P.O, KOZHIKODE. BY ADV. MR.T.G.RAJENDRAN RESPONDENT/COMPLAINANT/STATE -------------------------------------------------------- 1. M/S.CITY COMPUTERS, 17/1456 CHOICE COMPLEX, CHINTHAVALAPPU JUNCTION, KOZHIKODE, REP. BY ITS MANAGER, P.A. HOLDER SRI.KARUVARAKKAL SUDHARSH LAL, KRISHNA SHILA, THANNI PARAMBA, WEST HILL.P.O., EAST HILL, KOZHIKODE. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/04/2010, ALONG WITH CRMC. NO.516 OF 2010, CRMC.NO.517 OF 2010 AND CRMC. NO.518 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 515 of 2010 ORDER ON CRL.MA.NO.740/2010 IN CRL.MC.NO.515/2010 DISMISSED 08/04/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.515,516,517 & 518 OF 2010 =========================== Dated this the 8th day of April,2010 ORDER Petitioner is the fourth accused in S.T.84/2009, 82/2009,85/2009 and 83/2009 on the file of Special Judicial First Class Magistrate's Court (Marad Cases), Kozhikode taken cognizance for the offence under section 138 of Negotiable Instruments Act on Annexure-I complaint respectively in Crl.M.C.515/2010, 516/2010, 517/2010 & 518/2010. This petition is filed under section 482 of the Code of Criminal Procedure to quash the complaint as against the petitioner contending that the delay of 21 days was condoned without notice to the petitioner and learned Magistrate should not have condoned the delay without notice and on that sole ground, the cognizance taken is Crl.M.C.515,516,517 & 518 of 2010 2 illegal. It is also contended that though in the complaint it is alleged that petitioner is one of the Directors of the first accused Company, petitioner was never a Director from its inception as evidenced by Annexure II the certificate issued by the ESAI & Co., Chartered Accountants of the Company and therefore the proceedings as against the petitioner is to be quashed. 2. Though notice was served on the first respondent, he did not appear. 3. Learned counsel appearing for the petitioner was heard. 4. As the learned counsel submitted that the delay was condoned without notice to the accused the fact was got ascertained from the learned Magistrate by the registry. It is reported that the delay was condoned only on 12.6.2007 and notice was ordered in the application for condoning the delay and though notice was not personally served on the petitioner publication was effected in Mangalam Daily and only after such service the Crl.M.C.515,516,517 & 518 of 2010 3 delay was condoned. 5. Though learned counsel argued that petitioner is a citizen of USA and no notice was served on him, the complaint shows the address of the petitioner at Kozhikode. It is in that address notice was served and when it was returned publication was ordered in Daily having circulation in Kozhikode. It is only thereafter the delay was condoned. In such circumstances, I find no illegality in taking cognizance of the offence after condoning the delay as notice was served on the other accused also. Hence on that ground the cognizance taken cannot be quashed. But there is force in the submission of the learned counsel that no cognizance could have been taken as against the petitioner. In the first part of the complaint filed by the first respondent it is alleged that accused 3 to 5 are the Managing Directors and second accused is the Chief Executive of the Company. But in the last portion of the complaint the allegation is that accused 3 to 5 are the Crl.M.C.515,516,517 & 518 of 2010 4 Directors of the first accused Company and they are the person in charge and responsible for the day to day running of the Company and liable to pay the amount. Learned Magistrate had taken cognizance based on the said allegations. When the petitioner specifically contended that he was never a Director of the Company and therefore he cannot be prosecuted for the offence committed by the Company or its Directors, the first respondent did not appear before this court in spite of receipt of the notice or disputed the contention. The certificate issued from the Chartered Accountants of the Company establishes that petitioner was never a Director of the Company. In such circumstances, petitioner cannot be prosecuted for the offence under section 138 of Negotiable Instruments Act. In all the cases the cheques were not issued by the petitioner. He is not admittedly the signatory to the cheques. The cheques were not issued in the account maintained by the petitioner. Petitioner is not the Director of the Company. Hence he Crl.M.C.515,516,517 & 518 of 2010 5 cannot be vicariously held liable for the offence, if any committed by the first accused. In such circumstances, continuation of the proceedings as against the petitioner is only an abuse of process of court. Petitions are allowed. The cognizance taken by the Special Judicial First Class Magistrate's Court (Marad Cases), Kozhikode in S.T.84/2009, 82/2009, 85/2009 & 83/2009 as against the petitioner the fourth accused are quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006