USHA SANGHI Vs. THE STATE OF KERALA

JUDGEMENT

(1.) IN all the aforesaid criminal M.Cs which arise from four complaint cases, all of them for the offence under Section 138 of the Negotiable Instruments Act, for short the 'N.I. Act', the petitioners herein, who are stated to be the directors of a company, are proceeded as the accused. Though the Criminal MCs are eight in number, it is stated, the aforesaid accused in the cases have filed the petitions with two among the accused joining together. Mainly two grounds were set forth to assail the cognizance taken by the Magistrate on the complaints filed in the four cases by the petitioners/accused to invoke the inherent jurisdiction of this court to quash the criminal proceedings against them. The petitioners/accused are residing outside the jurisdiction of the Magistrate before whom the complaints were filed and as such after the amendment incorporated to Section 202 of the Code of Criminal Procedure, for short the 'Code', by Act 25 of 2005 without the Magistrate examining all witnesses of the complaint no process could have been issued against the accused. The other challenge is that in the complaints filed the essential ingredients necessary to proceed against the petitioners, who are directors of a company, have not been made out, and as such also no process could have been issued against the petitioners, directors of the company, and the company alone, a juristic person, can be proceeded for the offence under Section 138 of the N.I. Act. After the complainant entered appearance, on the submissions made by the counsel on both sides, apparently taking a view that there is divergence of opinion in two single bench decisions rendered by this court with respect to the interpretation placed over. The amendment brought in Section 202 of the Code, a reference was made. That reference has been answered by order dated 13.06.2012. In answering the reference the Division Bench, leaving no room for any doubt over the interpretation to be placed by the amendment brought under Act 25 of 2005 in Section 202 of the Code has stated thus: