IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 1516 of 2001() ------------------------------ ST.1318/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER/COMPLAINANT: --------------------- SANCY JOHN, W/O. JOHN, PROPRIETOR, A-I POLYMORE, MURIYAD, THRISSUR DISTRICT, REP. BY POWER OF ATTORNEY HOLDER ANTU. BY ADV. SRI.RENJITH THAMPAN RESPONDENT/3RD ACCUSED (1ST & 2ND ACCUSED DIED) --------------- K.P. SUBRAMANIAN, KANDEDATH HOUSE, MURIYAD, IRINJALAKUDA. ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1516 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October 2008 ORDER The complainant in a prosecution under Section 138 of the Negotiable Instruments Act has filed this revision petition impugning the order passed by the trial court dismissing the complaint holding it as not maintainable. 2. The case of the complainant who is stated to be the proprietor of a concern dealing with pipes was that Madassery Kera Vikasana Irrigation Samithi, Muriyad, had purchased some pipes and issued a cheque, dated December 24, 1997 for a sum of Rs.75,880/- towards the value of the pipes. The said cheque was signed by the Secretary, Treasurer and the respondent herein, for and on behalf of the Samithi. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. According to the complainant, statutory demand notice was issued to the accused on January 24, 1998. Accused 1 and 2, had accepted notice; but accused No.3 did not. The notice to accused 3, according to the complainant, was returned unclaimed. It was Crl.R.P.No.1516 OF 2001 :: 2 :: further alleged that the accused did not discharge the liability, in spite of receipt of notice. 3. The trial court took the complaint on file and issued notice to the three accused shown in the complaint, namely, (1) Sri.P.K.Pavunny, Secretary (2) Sri.K.O.Anthony, Treasurer and (3) the respondent herein. 4. The respondent herein who was arraigned as accused No.3 in the complaint was not impleaded as an office bearer of the Samithi. A perusal of the complaint would show that apart from stating that the three accused shown in the complaint were office bearers of the Samithi, there was no clue in what capacity the respondent herein (accused 3) represented the society. 5. It may be pertinent to note that accused No.2 had passed away even before the impugned order was passed by the court below. It is also the admitted position that Sri.P.K.Pavunni, Secretary, is also no more. Thus, only the respondent herein who was arraigned as accused No.3 in the complaint is alive now. 6. It is admitted by the complainant herself that she had received the memo from the Bank regarding dishonour of the Crl.R.P.No.1516 OF 2001 :: 3 :: cheque on January 10, 1998. It was further admitted by the complainant that on January 15, 1998 a registered demand notice was issued to the accused intimating them about the dishonour of the cheque and directing them to discharge the liability in order to avoid prosecution. 7. It is seen from the order of the learned Magistrate that the learned counsel for the accused had in fact produced the demand notice, dated, January 15, 1998 for perusal of the court at the time of hearing. Anyhow, the admitted position is that the complainant herself had no case that she had not issued a statutory demand notice on January 15, 1998 after receipt of the memo from the Bank on January 10, 1998. It is also beyond controversy that the accused had not paid the cheque amount after receipt of the said statutory notice, dated January 15, 1998. The complainant had not filed a complaint against the accused, though the cause of action had arisen after issuance of the said demand notice. 8. The complainant thereafter issued a registered lawyer notice through her counsel on January 24, 1998. According to the complainant, accused 1 and 2 accepted the notice on January Crl.R.P.No.1516 OF 2001 :: 4 :: 27, 1998. But notice to respondent 3 was allegedly returned unclaimed. The complaint was filed within the statutory period of limitation, since the accused did not discharge the liability. 9. It was in the above factual scenario that accused 1 and 3 had been summoned before the court below (accused 2 had passed away by that time, as mentioned earlier). It was contended by the accused that the complaint was not maintainable since the complainant had failed to initiate the prosecution when the cause of action had arisen after issuance of the first demand notice dated January 15, 1998. The above contention was accepted by the learned Magistrate and the proceedings against the accused were dropped. 10. As mentioned earlier, only accused No.3 is now before this court who is the sole respondent in this revision petition. It is contended by learned counsel for the complainant that the court below was not justified in stopping the proceedings without giving an opportunity to the complainant to adduce evidence. It is further contended by him that no notice had been issued to the respondent herein on January 15, 1998. Demand notice was issued only to accused Nos. 1 and 2, Crl.R.P.No.1516 OF 2001 :: 5 :: according to the complainant. It is thus contended that the court below ought to have entertained the complaint against the respondent herein, since the statutory notice to the respondent had been issued only on January 24, 1998 and the complaint was filed within the statutory period of limitation, thereafter. 11. I have perused the lower court records. A copy of the lawyer notice dated January 23, 1998 is available on record. It is true that the name of the respondent is shown as Sl.No.3 in the notice. The postal acknowledgment card in respect of accused 1 and 2 had been produced by the complainant along with the complaint. Sl.No.4 in the lawyer notice was the Madassery Kera Vikasana Irrigation Samithi. The notice issued to the said samithi was returned to the sender with the endorsement that such an addressee did not exist. The postal envelope along with the acknowledgment card was also produced by the complainant along with the complaint. Neither postal envelope nor the acknowledgment card which was allegedly refused to be claimed by the respondent was not produced by the complainant before the court below. I have referred to this aspect only to show that there was nothing on record to show Crl.R.P.No.1516 OF 2001 :: 6 :: when the statutory notice had been either served or attempted to be served on the respondent. 12. There is yet another aspect of the matter. As mentioned earlier, there is no averment in the complaint or even in the lawyer notice as to what official capacity the respondent was holding in the society. There is not even a whisper about the same either in the notice or in the complaint. The cause title of the complaint also does not give any clue about the relationship of the respondent with the society. There is no specific averment about the manner in which the respondent happened to be associated with the society or in what capacity he had issued the cheque in question. On the contrary, accused 1 was described as the Secretary and accused No.2 as the treasurer. In that view of the matter, I find considerable force in the contention raised by the respondent that the complaint filed against the respondent herein was wholly unsustainable not only for the reason that no material was produced by the complainant to show that the statutory demand notice was issued to the respondent as alleged by the complainant, but also because there was no averment in the complaint to show that the Crl.R.P.No.1516 OF 2001 :: 7 :: respondent was in any way responsible for the management of the affairs of the Samithi. In the absence of any specific averment with regard to the official capacity of the respondent in the Samithi, it cannot be said that he could be prosecuted for the offence under Section 138 of the Act. Admittedly the Secretary and Treasurer of the Samithi had issued the cheque for and on behalf of the Samithi for the purchase made by the Samithi. For that reason also, I am satisfied that the complaint against the respondent is incompetent and not maintainable. For the foregoing reasons, I do not find any reason to interfere with the order passed by the court below. There is no merit in the revision petition. It is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.1516 OF 2001 :: 8 :: A.K.BASHEER, J. Crl.R.P.No.1516 OF 2001 ORDER 17th October 2008 Crl.R.P.No.1516 OF 2001 :: 9 ::