A SHAHNAZ Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused 3 to 10 in S.T. No. 1609/04 on the file of Chief Judicial Magistrate, Ernakulam are seeking an order under S.482 of Code of Criminal Procedure to quash the complaint and the proceedings initiated against them by second respondent / complainant. Ext. P1 is the complaint. The allegation in the complaint is that 10 accused committed offence under S.138 of Negotiable Instruments Act. First accused is the company and second accused the Managing Director. Petitioners are impleaded on the allegation that they are managing the day today affairs of the company and therefore responsible for the conduct of the business of the company and hence liable for the offence under S.138 Negotiable Instruments Act. Petitioners would contend that they have nothing to do with the company and they are not Directors and they are not responsible for the conduct of the business of the company and the complaint is only an abuse of process of the court and therefore under Art.227 of the Constitution of India, the complaint as against the petitioners is to be quashed.

(2.) Heard learned counsel appearing for the petitioners and the learned counsel appearing for the second respondent.

(3.) Learned counsel appearing for the petitioners had taken me through Ext. P1 complaint as well as Ext. P2 notice issued under S.138(b) of Negotiable Instruments Act against 16 person including the 10 petitioners intimating the dishonour of the cheques and demanding the amount covered by the cheques and Ext. P3 memorandum of association of the Company. Learned counsel would argue that Ext. P3 memorandum of association of the company only shows that the third accused / first petitioner was a share holder who was one of the directors and petitioners 2 to 8 are not in any way connected with the Company and therefore complaint as against them is not maintainable. Learned counsel would argue that even though there is allegation in the complaint that petitioners are managing the entire day to day affairs of the company, there is no allegation that they were managing the day to day affairs of the company at the time when the cheque was issued or when the offence was allegedly committed and therefore even if the allegations in the complaint is accepted, petitioners 2 to 8 cannot be proceeded against.