IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.MC.No. 499 of 2008() ------------------------ CC.149/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER(S): ACCUSED: ----------------------- SAMBASIVA REDDY, S/O.LAKSHMANA REDDY, MANAGING DIRECTOR, SARAVANA CONSTRUCTION PVT.LTD., DEFENCE COLONY, MILITARY HOSPITAL, EKKATTUTHANGAL, CHENNAI-97. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. T.M. MATHACHAN, S/O. MICHAEL, MANAGING DIRECTOR, THUVANANICKAL PIPES PVT.LTD., THALIPARAMBA, KANNUR. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. S.UL. NAZAR. SRI.P.BABU FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 499 of 2008 ------------------------------------------------- Dated this the 25th day of November, 2008 ORDER The petitioner faces indictment in a prosecution under Sec.138 of the Negotiable Instruments Act. Cognizance has already been taken. The petitioner has come to this Court with a prayer that the prosecution against him may be quashed invoking the jurisdiction under Sec.482 Cr.P.C. The petitioner is the Managing Director of the drawee of the cheque (a company) and it is he who has signed the cheque on behalf of the company. The learned counsel for the petitioner prays that the prosecution against the petitioner may be quashed. 2. What are the reasons? The learned counsel for the petitioner first of all contends that the prosecution is not maintainable inasmuch as the petitioner has not been alleged to be in charge of and responsible to the company for the Crl.M.C. No. 499 of 2008 -: 2 :- conduct of its affairs. This contention cannot obviously stand after the declaration of law by the Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005 (4) KLT 209 (SC)). Proposition (3) laid down by the three Judge Bench on reference clearly shows that when the indictee is the Managing Director or the person who has signed the cheque himself, he is clearly responsible for the incriminating act and will be covered within the sweep of Sec.141 of the N.I. Act. The first ground of challenge cannot hence succeed. 3. The learned counsel for the petitioner secondly contends that towards the cheque of Rs.5 lakhs payments have already been made. The petitioner is willing to pay the balance amount also. But the respondent/complainant is refusing to accept the same on the plea that the amounts received will have to be credited towards other liabilities which are there and that, at any rate, the discharge of the civil liability does not efface or erase the culpable liability under Sec.138 of the N.I. Act. I find the learned counsel for the respondent is absolutely justified in raising this contention. Whether the payments already made are to be credited towards the existing earlier liability or towards the liability under the cheque all are to be raised before the court below. Moreover, even if the cheque amount were paid during Crl.M.C. No. 499 of 2008 -: 3 :- the pendency of the proceedings, that cannot prompt this Court to quash the proceedings as culpable liability is not thereby effaced. 4. The above discussions lead me to the conclusion that this Crl.M.C. only deserves to be dismissed. Needless to say, the petitioner who is willing to offer to make payment of the entire amount due under the cheque can certainly claim the benefit of Jain Babu v. Joseph (2008 (4) KLT 16) and claim to be represented by his counsel. 5. With the above observations, this Crl.M.C. is dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 499 of 2008 -: 4 :-