AYURDHANYA INDUSTRIES CO-OPERATIVE SOCIETY LTD. Vs. POULOSE

JUDGEMENT

(1.) The petitioners herein are the 4 accused in C.C.No.1205/2012 and Crl.M.P.No.9609/2012 on the file of the Judicial First Class Magistrate Court, Irinjalakkuda, alleging offence punishable under section 138 of the Negotiable Instruments Act. The complainant in both these cases is the 1st respondent in these cases. The petitioners seek quashment of these complaints. Both the complaints relate to the same alleged liability arising out of landed property transaction covered by Anxs-B & C sale deeds. Anx-A is the copy of the respective complaints in these cases and both the complaints are more or less similarly worded except the details of cheque, formalities taken in pursuance thereof, etc. It is averred in the complaints that the complainant and the Managing Director of the 1st accused Co-operative society were friends and that the 1st respondent complainant is the owner of 1.20 acres of land comprised in Sy.Nos.846/5 and 776/1 of Poomangalam Village, Thrissur District, and that the complainant agreed to sell the same to the 1st accused and the total sale consideration for the above said land was fixed at Rs. 99 lakhs. That the accused persons agreed to pay Rs. 5 lakhs in cash and that the balance Rs. 94 lakhs to be paid in instalments through cheques. Pursuant to this understanding Anx-B sale deed No.1834/2011 of Vadakkekkara SRO was executed and registered on 21.7.2011 for 17.80 ares of the above said land and Anx-C sale deed No.1835/2011 of Vadakkekkara SRO was also executed and registered on 21.7.2011 for 30.35 ares of land and that the entire extent of the above said 1.20 acres was conveyed by the complainant to the accused. Towards the balance sale consideration of Rs. 94 lakhs, 3 cheques were issued. Out of the said three cheques, cheque No.283090 dated 21.11.2011 for Rs. 25 lakhs issued by the accused in favour of the complainant was dishonoured and that after following the statutory formalities, Anx-A complaint in Crl.M.C. No.930/2013 was filed. The second dishonoured cheque is in respect of Rs. 59 lakhs as per cheque No.283088 dated 21.7.2012 was issued by the accused in favour of the complainant which was also dishonoured, etc., which led to the institution of Anx-A complaint in Crl.M.C.No.4985/2013. The cheque for balance Rs. 10 lakhs was alleged to be issued by the accused in favour of the mother of the complainant and it appears that the complaint is silent as to whether the said cheque was dishonoured and whether the payee of that cheque has taken any action for initiating private criminal complaint against the accused persons herein. However, it is pointed out on behalf of the petitioners that to the best of their knowledge, no such complaint has been initiated by the payee of the 3rd dishonoured cheque for Rs. 10 lakhs at the behest of the mother of the present 1st respondent complainant. It is further averred in the impugned complaints that the dishonoured cheques involved in these 2 cases were executed and signed by the Managing Director of the 1st petitioner Society and by that of the 2nd petitioner, who is stated to be the President of the said cooperative society. The complaints proceed as if the above said 2 cheques have been drawn from the account of the 1st accused Society. So, the drawer of the dishonoured cheques in question happened to be the 1st accused Society, etc. Petitioners would mainly contend that the complaints are liable to be quashed on two grounds. Firstly, there are no averments in the impugned complaints that the petitioners 2 to 4 (accused 2 to 4) were in charge of and responsible for the affairs of the business of the 1st accused Society at the relevant time and therefore the complaint as against them is liable to be quashed. The second ground is on the basis of various aspects arising out of Anxs-B & C sale deeds as well as Anx-D judgment of the civil court. Detailed aspects in regard to these contentions would be adverted to later.

(2.) Heard Sri. P. Vijayabhanu, learned Senior Counsel, instructed by Smt.Mitha Sudheendran, learned counsel appearing for the petitioners in these cases, Smt. P.R. Reena, learned counsel appearing for the 1st respondent and Sri.Saigi Jacob Pallatty, learned Prosecutor appearing for R-2 State.

(3.) As per the specific case projected in the impugned complaints, the dishonoured cheques in question were issued from the account maintained by the 1st accused-Society and that the signatories of the said cheques are the Managing Director of the 1st petitioner Society and the 2nd accused, who is the President of the 1st petitioner Society. A mere perusal of both the complaints would disclose that there are no averments anywhere in those complaints that petitioners 2 to 4 (accused 2 to 4) were in charge of and responsible for the affairs of the business of the Society as conceived in section 141 of the Negotiable Instruments Act so as to invoke vicarious liability of office bearers of body corporates as envisaged in that section. It would be profitable to refer to Section 141 of the N.I.Act which reads as follows: