IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.MC.No. 2989 of 2008() ------------------------- ST.235/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... PETITIONER(S): --------------- 1. MR.DAVIS MANUEL, S/O.MATHEW MANUEL, AGED 42 YEARS, KOLADI HOUSE, CHERPUNGAL, P.O.PALA, KOTTAYAM. 2. MRS.JINI DAVIS, W/O.DAVIS MANUEL, AGED 37 YEARS, KOLADI HOUSE, CHERPUNGAL, P.O.PALA, KOTTAYAM. 3. MATHEW MANUEL, S/O.K.P.MATHEW, AGED 76 YEARS, KOLADI HOUSE, CHERPUNGAL, P.O.PALA, KOTTAYAM. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT(S): COMPLAINANT AND STATE; ------------------------------------- 1. HEADER SYSTEMS INDIA LIMITED, REGISTERED OFFICE, KP 711/1000, POPPULAR COMPLEX SANTHANPARA, PARATHODE, ERNAKULAM DISTRICT REPRESENTED BY MANAGING DIRECTOR, MR.SUNNY JOSEPH, S/O.JOSEPH, THOTTIYIL HOUSE, PACHAKKARA, KOONTHAL VILLAGE, UDUMBANCHOLA TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2989 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October, 2008 O R D E R The petitioners are the accused in a prosecution under Section 138 of the N.I. Act. Cognizance has been taken on the basis of the complaint filed by the complainant. The petitioners have already appeared before the learned Magistrate, it is submitted. They have now come to this Court with a prayer that powers under Section 482 Cr.P.C. may be invoked to quash the proceedings against them. 2. What is the reason? Three specific grounds are raised. First of all it is contended that the cheque is issued by the Managing Director of Koldy Petroleum (India) Ltd. and that there is no contention even that the said company has any liability to be discharged. The learned counsel for the respondent/complainant contends that it is not necessary that the cheque must be issued for the discharge of a liability which is Crl.M.C.No. 2989 of 2008 2 personal between the account holder and the payee. It is trite and the learned counsel relied on the decision in Gracy Thomas v. State of Kerala (2005 (4) KLT SN 75 Page 56) in support of the said contention. I find merit in that contention. It is not the law that to attract culpable liability under Section 138 of the N.I. Act the cheque must be issued by an account holder to discharge a liability, which is personal between him and the payee. If a person issues a cheque to the payee to discharge a liability of another person, then also the culpable liability under Section 138 of the N.I. Act does not vanish. The use of the expression “any debt or liability” in Section 138 makes the position crystal clear. 3. It is next contended that the company has not been arrayed as an accused. The law as it stands is clear that a prosecution under Section 138 of the N.I. Act with the aid of Section 141 of the Act can still lie even where the company has not been arrayed as an accused. The fact that the matter has been referred to a larger Bench by the Supreme Court does not in any way militate against the position of law which now appears to be settled. Crl.M.C.No. 2989 of 2008 3 4. Thirdly and lastly it is contended that there is no averment even that the accused persons are in charge of and responsible to the company for the conduct of its affairs. The first accused has signed the cheque and following the dictum in S.M.S. Pharmaceuticals v. Neeta Bhalla (2005 (4) KLT 209 (SC) the signatory is undisputedly liable. So far as the other two are concerned, the counsel for the respondent relies on the reply to the notice of demand, in which it is admitted categorically that the cheque was issued for the discharge of the liability by the three accused persons. I am, in these circumstances, satisfied that invoking the powers under Section 482 Cr.P.C. that controversy need not be resolved. No other grounds are raised. In these circumstances I am satisfied that the jurisdiction under Section 482 Cr.P.C. does not deserve to be invoked. 5. This Crl.M.C. is accordingly dismissed. But I may hasten to observe that I have not intended to express any authentic opinion on merits of any of the contentions raised. I choose to take the view that the powers under Section 482 Cr.P.C. do not deserve to be invoked. It shall be open to the petitioners to raise all relevant contentions Crl.M.C.No. 2989 of 2008 4 before the learned Magistrate and dismissal of this Crl.M.C. will not in any way fetter their options. (R. BASANT) Judge tm