ACHANKUNJU Vs. HOUSE OF TILES

JUDGEMENT

(1.) The petitioner is accused No.2 in C.C.No.218/2016 on the file of the Judicial First Class Magistrate Court, Koothattukulam, instituted on the basis of a complaint filed by respondents 1 & 2 alleging offence punishable under Sec. 138 of the Negotiable Instruments Act. Anx.A-6 is the copy of the impugned complaint. Accused No.1 therein is a chit company. The petitioner and another person, who are alleged to be the Directors of the alleged chit company, have been arrayed as accused Nos.2 & 3. The gist of the allegations in the impugned Anx.A-6 complaint is that towards the amounts, which are owed by the 1st accused chit company to the complainant in the chit transactions entered into by him with the company, the cheque in question for an amount of Rs.33 lakhs dated 24.11.2015 drawn from the account maintained by the 1st accused company has been issued and executed by accused Nos.2 & 3, who are the Directors and signatories of the said cheque. It is also alleged in the said complaint that the 1st accused chit company was closed some time in Aug., 2015, and that the police authorities of Koothattukulam, had initiated criminal proceedings against the company and its officials and that the matter was discussed and settled between the complainant and accused and it is thereafter that the said cheque for Rs.33 lakhs dated 24.11.2015 has been issued from the accused-company's account and the same has been executed and signed by accused Nos.2 & 3 as the Directors of the company and who are the signatories of the cheque, etc. It is alleged in para 4 of the complaint that the cheque in question dated 24.11.2015 was dishonoured by the bank concerned as per memo intimating dishonour dated 15.2.2016 and that statutory demand notice under Sec. 138(b) was issued by the complainant to the accused on 5.3.2016 which has been received by the 2nd accused on 8.3.2016 and which was returned unclaimed by the 3rd accused, etc. The main contention urged by Sri. P.V. Jayachandran, learned counsel appearing for the petitioner-accused No.2, is that the petitioner had demitted from the office of the Director of the company on 3.1.2015 and that the company had duly intimated about the resignation of the petitioner from the company to the Registrar of Companies and that he was not the Director of the company either at the time of the issuance of the cheque on 24.11.2015 or at the time of dishonour of the cheque on 15.2.2016 and therefore he cannot be mulcted with the vicarious liability as per Sec. 141 of the N.I.Act as he was no longer a Director at the time of dishonour of the cheque, etc. This Court had ordered the petitioner to implead the Registrar of Companies, Kochi, who is the functionary of the Government of India in terms of the provisions contained in the Companies Act as an additional respondent in this case. Accordingly, Registrar of Companies, Kochi, was impleaded as additional R-4 in the present Crl.M.C. The learned Assistant Solicitor General has taken notice for the said additional R-4 and has filed a detailed affidavit dated 14.2.2017 regarding the factual aspects in the averments about the resignation of the petitioner from the Directorship of the 1st accused-company.

(2.) Though notice has been duly served on R-1 & R-2, there is no appearance for those parties. This aspect has been clearly endorsed by the Registry as per endorsement dated 27.11.2016. Thereafter the matter has been adjourned repeatedly to ensure whether those parties are entering appearance before this Court. Till now, none has appeared for R-1 & R-

(3.) Heard Sri. P.V. Jayachandran, learned counsel appearing for the petitioner-2nd accused, Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-3 State and Sri. N. Nagaresh, learned Assistant Solicitor General, appearing for additional 4th respondent-ROC, Kochi.