IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.MC.No. 3238 of 2007(F) ------------------------------- CC.1543/2006 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): ACCUSED NO.4 & 5 ---------------------------------------- 1. ANU SALIM, W/O.M.A.SALIM, SHAMINA HOUSE, THIRUVAMBADI, ALAPPUZHA. 2. FATHIMA RASHEED, W/O.K.Y.RASHEED, FARIS HOUSE, NEAR CIVIL STATION, ALAPPUZHA. BY ADV. SRI.SUDHEENDRAN. K.Y. SRI.N.ASHOK KUMAR RESPONDENT(S): STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MR.V.SANKAR, S/O.VAIDYANATHA IYER, AGED 47, MANNOOR MADOM, KULANADA VILLAGE, PATHANAMTHITTA DIST. ADV. SRI.S.SAJJU SRI.K.SHAJ SRI.BALRAJ PUBLIC PROSECUTOR SMT.REKHA NAIR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/07/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE, J. --------------------------------------------------------------- Crl. M. C. No.3238 of 2007 --------------------------------------------------------------- Dated this the 29th day of July, 2010 ORDER The petitioners who are accused Nos.4 and 5 in Annexure-IV complaint submitted by the second respondent before the Chief Judicial Magistrate's Court, Pathanamthitta have filed this petition under Section 482 of the Cr. P.C for quashing Annexure-IV complaint to the extent the same relates to them. Annexure-IV complaint accuses all the persons arraigned as accused in the case to be guilty of having committed offence under Section 138 of the N. I Act. It is alleged in the compliant that all the accused including the petitioners herein are partners of M/s Seethas Theatres, Alappuzha and all of them are engaged in the day-to-day affairs and business of the Crl. M. C. No.3238 of 2007 -2- partnership firm. It is further alleged that towards discharge of a debt duly owed by the above partnership firm to the complainant, the cheque in question was drawn by one of the partners representing the firm in favour of the complainant, that upon presentation with the bankers the cheque was dishonoured for the reason of “insufficiency of funds”. It is specifically averred as regards the petitioners that they and for that matter all the accused other than the accused who has actually signed the cheque in his capacity as the authorised signatory of the firm are persons responsible and are in charge of the firm for the conduct of the business of the firm. Ground which is raised in this Crl. M. C is that the accused were never partners of the firm and at no point of time they have anything to do with the Crl. M. C. No.3238 of 2007 -3- management of the business of the firm. Reliance is placed on Annexure-V which is said to be the copy of the partnership deed pertaining to the firm Seethas theatres. It is conceded that the husbands of the petitioners who are arraigned respectively as accused Nos.1 and 2 are partners and the same is clear from Annexure-V also. 2. On considering this Crl. M. C for admission and noticing prima facie merit this Court ordered notice by speed post to the complainant and also to the complainant's Advocate appearing before the court below. This Court also ordered interim stay of further proceedings against the petitioner which has continued since then. There is no representation for the respondents. 3. I have heard the submissions of Sri.N.Asok Crl. M. C. No.3238 of 2007 -4- Kumar, the learned counsel for the petitioner. He drew my attention to Annexure-I cheque, Annexure-II complaint and Annexure-V partnership deed. He drew my attention also to Annexure-III reply notice in which one of the petitioners had specifically raised the contention that she is not a partner at all in the firm and that she has been arraigned only to harass her and to compel her husband and the other partners in the firm to agree to the unconscionable demand of the complainant. Section 141 of the N.I. Act deals with offence by companies and provides that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and Crl. M. C. No.3238 of 2007 -5- punished accordingly. The explanation to the Section provides that for the purpose of this Section the word company shall mean any body corporate and includes a firm or other association of individuals. It is thus clear that if the petitioners were persons in-charge of or were responsible for the conduct of the business of the firm at the time of commission of the offence they will be liable to be proceeded against and punished for offence under the Act. The cheque in question is drawn on the account of the firm by accused No.3 K.Y.Ziad. The averments in the complaint that the petitioners are also responsible for the conduct of business by the firm is made as a corollary to the initial averment that the petitioners are also partners of the firm along with their husbands. The documents produced along with Annexure-IV complaint before the court below just Crl. M. C. No.3238 of 2007 -6- seven in number will not show that the petitioners are either partners of the firm or were persons who are responsible for the conduct of business of the firm. Annexure-V on the contrary gives strong support to the case of the petitioners that they were not partners of the firm at all. Though the first respondent entered appearance before this court way back in November, 2007 he has not chosen to produce any document which will at least prima facie indicate that the petitioners are partners in the firm in question. In fact, the claim of the petitioners that they are not partners stands supported by Annexure-V authenticity of which is not disputed by the second respondent. That being so, I am of the view that the arraignment of the petitioners who are wives of their husbands who were partners of the firm was an abuse of legal process Crl. M. C. No.3238 of 2007 -7- warranting invocation of the inherent powers of this Court under Section 482 of the Criminal Procedure Code. 4. The result of the above discussion will be that Annexure-IV to the extent it arraigns the petitioners respectively as accused Nos.4 and 5 will stand quashed. The learned Magistrate is directed to proceed with Annexure-IV to the extent it relates to the other accused therein and dispose of the same in accordance with law at the earliest. 5. The Crl. M. C. is allowed. PIUS C. KURIAKOSE JUDGE kns/-