BALACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant in Crl.A.No. 552/2015 is the complainant in C.C.No. 1668/2009 on the file of the Judicial First Class Magistrate Court-I, Ernakulam, alleging offence punishable under Section 138 of the N.I.Act, in which the 2nd respondent was originally arrayed as the sole accused therein. The cheque amount in that case is for Rs. 65,230/- (Rupees Sixtyfive thousand two hundred and thirty only). The trial court had initially convicted the accused for the above said offence and had sentenced him to pay a fine with a default clause. This was challenged by the accused in Criminal Appeal and the appellate Sessions Court has confirmed the verdict of the trial court. The appellant in Crl.A.No. 553/2015 is the complainant in C.C.No. 1667/2009 on the file of the above said court alleging the same offence in which the 2nd respondent herein was originally arrayed as the sole accused therein. The trial court has convicted and sentenced the accused to pay fine which was also confirmed in appeal. The appellant in Crl.A.No. 555/2015 is the complainant in C.C.No. 1669/2009 before the same court alleging the same offence in which the 2nd respondent herein was originally arrayed as the sole accused. Here also the trial court had convicted and sentenced the accused to pay fine with default clause, which was confirmed in appeal. The complainant in all these cases are the same person and the original accused is also the same person in all these matters.

(2.) The confirmation of the conviction and sentence as mentioned above was challenged by the 2nd respondent herein by filing Crl.R.P.Nos. 1704, 1705 and 1706 of 2012 before this Court by taking recourse to the remedy under Section 397 r/w section 401 of the Cr.P.C., 1973 Before this Court it was pointed out by the accused that it has clearly come out in evidence that the dishonoured cheque in question was issued from an account maintained by the company concerned and it was not a personal account held by the sole accused and the sole accused happened to be the Managing Director of the said chit company and that it was accordingly contended that since the drawer of the cheques happened to be the company and as the company, which is the principal offender has not been arrayed as accused in these cases, the complaints are not maintainable and that the accused is entitled for acquittal. It was contended by the complainant that earlier as per the judgment dated 26.11.1999 passed by the Apex Court in Anil Hada v. Indian Acrylic Ltd. reported in (2000) 1 SCC 1, the Apex Court had held that even if the dishonoured cheque has been drawn from an account maintained by a company, prosecution would lie against an individual Director of the company even without arraying the company as accused in such complaints. It was pointed out that the sole accused was the Managing Director of the company, who was also the signatory in all the 3 cheques. Later, as per the judgment dated 27.4.2012 of the Supreme Court in the case Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., reported in (2012) 5 SCC 661, a Three Judge Bench of the Apex Court had held that so long as the cheque is drawn from an account maintained by the company, the offence under Section 138 of the N.I.Act is committed by the drawer of the cheque and so the company, being the drawer, is the principal offender to such an offence and that a criminal complaint alleging offence under Section 138 of the N.I.Act can be maintained only by arraying the company, who is the drawer of the cheque, as an accused. That other Directors, who are in charge of and responsible for the affairs of the business of the company as conceived in Section 141 of the N.I.Act, could also be arrayed as accused. Accordingly, the aforesaid Three Judge Bench of the Apex Court in the decision in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., reported in (2012) 5 SCC 661, has overruled the earlier view taken by the 2 Judge Bench decision as in Anil Hada v. Indian Acrylic Ltd., reported in (2000) 1 SCC 1. Therefore, in the light of the subsequent 3 Judge Bench decision of the Apex Court in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., reported in (2012) 5 SCC 661, it was contended by the sole accused before this Court in the above said revisions that the complaints itself are liable to be thrown out and the accused is entitled to the benefit of acquittal as the company, who is the drawer of the cheque, has not been arrayed as accused in the complaints. It was contended by the complainant that the complaint was instituted at a time when the earlier 2 Judge Bench decision of the Apex Court in Anil Hada v. Indian Acrylic Ltd., reported in (2000) 1 SCC 1, was in vogue and that the complainant should not be penalised as he could not foresee at the time of the institution of the complaints that the said 2 Judge Bench decision would be overruled, etc. Presumably, taking into note of this contention, this Court ordered that the complainant should be given another opportunity to continue the prosecution before the trail court after arraying the company also as accused in these 3 cases. Accordingly, this Court had remanded the matter to the trial court for fresh disposal of the above said complaints. It is also ordered that if the petitioners file applications for arraigning the company also as an accused in the three cases, the Magistrate shall consider and pass orders on the same day in accordance with law and continue the prosecution, etc. On this basis, this Court has finally disposed of all the Criminal Revision Petitions as per order dated 26.11.2012. The said common order dated 26.11.2012 passed by this Court in Cr.R.P.Nos. 1704, 1705 7 1706 of 2012 reads as follows: "These three Criminal Revision Petitions are filed by the accused in three prosecutions under section 138 of the Negotiable Instruments Act. The petitioner is the Managing Director of M/s. Parapurath Chitties (P) Ltd., who issued three cheques on behalf of the company as its authorised signatory, to the 2nd respondent each of which is the subject matter of these three Criminal Revision Petitions. Those cheques were dishonoured on presentation for want of sufficient funds in the account of the company. The complainant filed three complaints before the Judicial First Class Magistrate Court-I, Ernakulam, as C.C.Nos. 1667, 1668 & 1669 of 2009. The Magistrate convicted the petitioner and directed the petitioner to pay the cheque amount as fine with a default sentence. The petitioner filed Criminal Appeal Nos. 718, 719 & 720 of 2011. The appeals were dismissed by the Additional Sessions Judge(Ad-Hoc-I) Ernakulam. Against those judgments the petitioner has filed these three Criminal Revision Petitions. 2. The petitioner does not dispute the execution of the cheque or the liability of the company to pay the amounts covered by the cheques. The only contention raised by the petitioner is that a prosecution under section 138 of the Negotiable Instruments Act would not lie against the Managing Director of the Company without arraigning the company also an accused, which has not been done in this case. The petitioner relies on the decision of the Supreme Court in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., 2012 (2) KLT 736 (SC), in support of his contention.

(3.) I have heard the learned Counsel for the 2nd respondent complainant also. His only contention is that having admitted that the petitioner signed and issued the cheque, he is responsible for the cheque and as such he is liable to be prosecuted for the offence under section 138 of the Negotiable Instruments Act.