LAWS(KER)-2011-10-64

SALIM PUSHPANATH Vs. R.RAMALINGAIER, BROADWAY

Decided On October 14, 2011
Salim Pushpanath Appellant
V/S
R.Ramalingaier, Broadway Respondents

JUDGEMENT

(1.) The petitioner herein is the accused in C.C.No.160 of 2008 on the file of the Court of Judicial First Class Magistrate - IV, Ernakulam. The allegation against him is the commission of offence under section 138 of the Negotiable Instruments Act. Originally, the first respondent filed a private complaint against the petitioner and three others and that was taken on file and numbered as C.C.No.677 of 2002 by the Court of Chief Judicial Magistrate, Ernakulam and then, on account of the non - appearance of the parties, it was included in the L.P. list as L.P.43 of 2005. In L.P.43 of 2005 the petitioner entered appearance and subsequently he was released on bail. Later, it was re -filed as CC No. 160 of 2008 and was split up and transferred to the Court of the Judicial First Class Magistrate -IV, Ernakulam. The case of the petitioner is that he was the Chairman of Info -Search Marketing Pvt. Ltd.. He submitted Annexure -B resignation letter dated 9.8.1999 to the Board of Directors of the said company. As contemplated under the provisions of the Companies Act, 1956 the factum of his resignation was duly informed to the Assistant Registrar of Companies in form No.32. The said fact is obvious from Annexure -D. Annexure -D would reveal that the Registrar of Companies had accepted the same. In view of the aforesaid facts borne out from Annexures B to D it is contended that at the time of issuance of the cheque in question bearing No.386789 dated 13.02.2001 drawn on Vysya Bank, Kottayam he was not responsible for the day today affairs of the Company. It is contended that there is no averment in Annexure -A complaint that the petitioner herein was responsible for the day today affairs of the Company as on the date of issuance of the cheque. In the said circumstances, relying on the decision of the Hon'ble Apex Court in D.C.M. Financial Services Ltd. v. Sareen (2008 (2) KLT 762) it is contended that there is no specific averment in Annexure -A complaint that at the time when the offence was committed the petitioner herein was in charge and responsible for the conduct of the business of the Company. Relying on the said decision it is contended that even if trial is allowed to be proceeded with, there is no chance for the case ending in his conviction. It is in the said circumstances that this Crl.M.C. has been filed seeking to quash Annexure -A complaint as also all further proceedings in C.C.No.160 of 2008 to the extent it pertains to the petitioner.

(2.) Heard the learned counsel for the petitioner, the learned counsel for the first respondent and also the learned Public Prosecutor.

(3.) In the light of the contentions raised on behalf of the petitioner the learned counsel appearing for the first respondent brought to my attention the specific averments in Annexure -A complaint which is relevant for the purpose of this case. It reads thus: - "The complainant supplied paper worth Rs.4,77,472/ - (Rupees Four lakhs seventy seven thousand four hundred and seventy two only) to the accused. The accounts between the complainant and the accused were settled. After adjusting all the payments, a sum of Rs.2,54,600/ - (Rupees Two lakhs fifty four thousand six hundred only) was found due from the 1st accused. For discharging the said liability which owes to the complainant the 2nd, 3rd and 4th accused drawn and delivered a cheque for the said sum of Rs.2,54,600/ - (Rupees Two lakhs fifty four thousand and six hundred only) bearing No.386789 dated 13.02.2001 in favour of the complainant drawn on The Vysya Bank Ltd., Baker Junction, Kottayam - 686 001." It is thus obvious that, in essence, the contention of the first respondent complainant is that the petitioner herein who is described as the second accused in Annexure -A complaint is also one of the signatories to the cheque in question bearing No.386789 dated 13.10.2001. The learned counsel for the first respondent submitted that in view of the said specific averment in Annexure -A complaint and in the light of the decision of the Hon'ble Apex Court in Southern Steel Limited and others v. Jindal Vijayanagar Steel Limited ((2008) 5 SCC 762) the decision reported in 2008 (2) KLT 762 (supra) is not applicable in this case. It is contended that in the case of a signatory to a cheque on behalf of the Company there is no need to make a specific averment that he was in charge and responsible to the affairs of the Company for the conduct of the business of the Company. The decision reported in 2008 (2) KLT 762 (supra) is inapplicable in the facts and circumstances of this case, it is contended. The above extracted portion from Annexure -A complaint would reveal that the first respondent has made a specific averment in the complaint that the cheque in question for discharging a legally enforceable debt owing to the complainant was jointly drawn and delivered by accused 2, 3 and 4. As already noticed hereinbefore, the petitioner herein is described in Annexure -A as the 2nd accused and the original private complaint filed by the first respondent arraying the petitioner herein as the 2nd accused was taken on file and numbered as C.C.No.677 of 2002. But, the same was subsequently split up and refiled as C.C.No.160 of 2008. In view of the said specific averment in Annexure -A complaint and also in view of the decisions of the Hon'ble Apex Court in Southern Steel Limited and others v. Jindal Vijayanagar Steel Limited ((2008) 5 SCC 762) and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another ((2005) 8 SCC 89) the decision reported in 2008 (2) KLT 762 (supra) is inapplicable and, therefore, this is not a fit case for invoking the inherent power by this Court under Section 482 Cr.P.C. The learned counsel for the first respondent further relied on a decision of the Hon'ble Apex Court in Minu Kumari and another v. State of Bihar and others ((2006) 4 SCC 359). In the said decision, the Hon'ble Apex Court held that the inherent power under section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. Further, it was held the Court being a High Court of State should normally refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy, more so when evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, cannot be seen in their true perspective without sufficient material. This is not a fit case wherein this Court should invoke the inherent power under section 482 Cr.P.C. in the light of the decisions reported in (2008) 5 SCC 762 and (2005) 8 SCC 89 and also considering the specific averment in Annexure -A complaint as extracted above. In view of the foregoing discussions, I do not find any merit in this case warranting invocation of the power under section 482 Cr.P.C. and this petition is liable to fail. Accordingly, it is dismissed.