IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.L.P..No. 927 of 2010() -------------------------------------- CRA.892/2006 of ADDITIONAL SESSIONS COURT (ADHOC), TRIVANDRUM ........................................... PETITIONER/1ST RESPONDENT/COMPLAINANT --------------------------------------------------------- MAHESH KUMAR, PROPRIETOR, MAHESH MEDICALS, VP-II/398, VRINDAVAN SHOPPING COMPLEX, PEYAD, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S): APPELLANTS/ACCUSED & STATE ----------------------------------------- 1. THE TAXI DRIVERS CO-OP. SOCIETY LTD. NO.412, TC 31/2647, EDAPAZHINJI, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. THE PRESIDENT, THE TAXI DRIVERS CO-OP. SOCIETY LTD. NO.412, TC 31/2647, EDAPAZHINJI, SASTHAMANGALAM, THIRUVANANTHAPURAM. 3. THE SECRETARY, THE TAXI DRIVERS CO-OP. SOCIETY LTD. NO.412, TC 31/2647, EDAPAZHINJI, SASTHAMANGALAM, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 TO R3 BY ADV. SRI.RAJESH P.NAIR R4 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.L.P.No.927 OF 2010 ----------------------------------- Dated this the 15th day of September, 2010 O R D E R This petition is filed for granting special leave to file appeal. 2. The petitioner filed a private complaint against respondents 1 to 3 alleging offence u/s.138 of the Negotiable Instruments Act. According to the complainant, a cheque was issued by first respondent - Society and its President and Secretary who are the second and third respondents as persons in charge and responsible to the Society at the relevant time. A notice was issued to respondents 2 and 3, the President and Secretary. But they did not pay the amount. Hence complaint filed against President and Secretary. 3. The appellant adduced evidence and on an analysis of the evidence, trial court convicted accused 1 to 3. All the three accused however, filed an appeal challenging the conviction and sentence against 2nd and 3rd accused (No sentence was passed on accused No.1). In appeal, conviction and sentence were set aside. Hence this petition is filed for special leave to file appeal against order of acquittal. Crl.A. No.927/10 2 4. Appellate court, after evaluating evidence and records, held as follows: “Here the accused Nos.2 and 3 are not named but are shown by their official designation in the company only. To attract a prosecution of accused No.2 and 3 by virtue of Sub Section (1) of Section 141 their names should have been stated in the complaint. But that is not done in the present case. The first accused society is the drawer of the cheque and the accused Nos.2 and 3 are only the authorised signatories of the cheque for and on behalf of the society. The proviso (b) to Sec. 138 of the Act stipulates that the offence would be complete only when there is failure of the drawer of the cheque to make payment within 15 days of receipt of the notice demanding the amount of the bounced cheque. Hence the very averment of the complainant in the complaint is that the complainant has sent notice only to the accused Nos.2 and 3 and that too only in their designation in the society. Ext.P4 statutory notice itself reads that the notice was addressed to the accused Nos. 2 and 3 in their official designation and not in their names. No notice is even sent to 1st accused, Society which is the drawer of the cheque demanding the amount of the cheque. The offence u/s.138 of the Act is complete only upon such giving of the demand notice and the failure of the drawer to pay the cheque amount in the case. Here, no notice under the proviso to Section 138 was given to the Society. The notice is given only to accused Nos.2 and 3. When a notice is not even served on the society which is the drawer of Ext.P1 cheque, that drawer (the 1st accused, society) cannot be held guilty of the offence u/s 138 of the Act. When the Society is not shown as guilty u/s 138 of the act, the accused Nos.2 and 3 are not liable to be Crl.A. No.927/10 3 convicted.” 5. Learned counsel for petitioner submitted that trial court convicted the accused, but appellate court acquitted them for the reasons that the President and Secretary who are 2nd and 3rd accused were not named in the complaint, but they were shown in their official designation and that to attract the prosecution by virtue of Sec.141 of N.I Act, their names ought to have been stated in the complaint. 6. Learned counsel for respondent argued that no notice was issued under section 138(b)of N.I Act to first accused, who is the society and without any such notice President and Secretary, who are allegedly acting on behalf of the society cannot be held guilty for offence u/s 138 of the Act. He also relied upon the decision of this court reported in 2005 Crl.L.J 4572 in support of the contentions. There is absolutely no error or illegality in the order of the appellate court, it is submitted. It is also argued that the trial court failed to take note of this fact and convicted accused nos.2 and 3. It is also pointed out that first accused society was convicted without any basis, by trial court and it is interesting to note that trial court did not impose any sentence on the society. Crl.A. No.927/10 4 7. On hearing both sides and on going through the judgment of the appellate court, particularly the portions extracted above, I am satisfied that none of the accused can be convicted for offence u/s 138 of Negotiable Instruments Act since no notice is issued to the society (A1) under section 138(b), the society cannot be convicted for offence u/s. 138 of N.I Act. The main offender is the society and it it cannot be convicted no person who is stated to be in charge of the society can also be convicted. It is only if the society (A1) is found guilty u/s.138 of N.I Act, the person who are referred to in sec.141 also will be deem to be guilty of offence u/s.138 of N.I Act. 8. In this case, no notice is issued u/s.138(b) of N.I Act to the Society and in the absence of issuance of such notice no offence will lie against society u/s138 of the Act. Since society is not liable, its President and Secretary also cannot be made liable. Hence there is no reason to reverse the findings. I am not inclined to grant special leave. This petition is dismissed. K. HEMA, JUDGE. Sou.