RAMESH KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard arguments of Advocate Sri R.T. Pradeep for the petitioner and Sri M. Ramesh Chander for the second respondent.

(2.) The petitioner is the same in all these cases. He is the accused in C.C. 136/02 and C.C. 272/03 on the file of the Judicial First Class Magistrate's Court-V, Thiruvananthapuram; and C.C. 454/01 on the file of the Judicial First Class Magistrate's Court-Ill, Thiruvananthapuram in relation respectively to which these Crl.M.Cs. arise. All the above calendar cases are filed by the second respondent complaining of commission by the petitioner as also accused Nos.l and 2 of offence punishable under S.138 of the N.I. Act. The first accused is M/s. Alsa Spring Fields, a Company of which the second accused is the Managing Director and the petitioner/third accused is the Project Manager at Thiruvananthapuram. The company was at the relevant time engaged in construction activities inter alia of resideatial apartments. The second respondent/ the de facto Complainant had advanced funds for allotment of a flat at Ernakulam but consequent on dropping up of the proposed venture at Ernakulam, the company ascertained its willingness to have a flat allotted in the residential complex that was undertaken by the company at Thiruvananthapuram. The petitioner was not agreeable. Hence, towards repayment of the amounts advanced by the second respondent on instructions from those at the helm of affairs of the first accused/Company, the petitioner/third accused issued three cheques over and above making a cash payment of Rs.50,000/- to the second respondent. It so happened that all the three post dated cheques were being issued admittedly on 25.09.2000 on which day was Annexure-III order passed by the Company Court at Madras ordering winding up of the first accused/Company. Even the second respondent has no case that cheques were being issued by the petitioner being aware of Annexure-III order ordering winding up of the first accused/Company. The cheques issued by the petitioner were all dishonoured by the drawee bank/The Karur Vysya Bank Ltd. But cheque No.224620 was being dishonoured vide Annexure-V/Dishonour Memorandum dated 01.11.2000 assigning the reason "Funds Insufficient". Cheque No. 224621 which is subject matter in Crl.M.C. 462/04 and cheque No.224623 which is subject matter in Crl.M.C. 459/04 were being dishonoured respectively under Annexure-V/Dishonour Memorandums filed in those cases assigning the reason "operations stopped by the Court".

(3.) It is vehemently contended before me by the learned counsel for the petitioner that as per Annexure-III order of the Company Court, Madras, the first accused/third respondent-Company was wound up on 25.09.2000 and the Company has become non est and what remained was the proceeding for distribution of its assets by the official liquidator and that therefore, by application of S.141 of the N.I. Act, it cannot be said that the petitioner who has drawn the cheque in favour of the second respondent on behalf of the third respondent/Company which is non esth liable for offence under S.138 of the N.I. Act. It is not in dispute that the company owed amounts to the second respondent and it was in discharge of that liability, that all the three cheques were issued by the petitioner who was the Project Manager of the Company at Thiruvananthapuram on behalf of the Company. Admittedly, there is no evidence as to whether the cheques were being issued with knowledge of Annexure-III order. However, the drawee-Bank was also not aware of the winding up proceedings and they had also not been prohibited from making payments from the account of the first accused/ Company as on the date of dishonour of Annexure-V cheque involved in C.C. 136/02 aforesaid and the reason for dishonour is "Funds Insufficient". It cannot be said that no offence under S.138 of the N.I. Act stands made out at least prima facie in relation to the dishonour of cheque No.224620 vide Annexure-III dishonour memorandum which has given rise to the complaint in C.C. 136/02. Hence, there is no merit in Crl.M.C. 461/04.