TRITON MARINEX Vs. STATE OF KERALA

JUDGEMENT

(1.) These applications are filed to quash Annexure E complaint and to set aside the process issued against the petitioners in C.C. No. 368 of 1998 on the file of the Judicial First Class Magistrate's Court - II, Ernakulam. Crl. M.C. 2789/1998 is filed by Island 3rd accused and Crl.M.C. 2790/1998 is filed by the 2nd accused in that case.

(2.) The second respondent filed a complaint before the Court of Judicial First Class Magistrate-II, Ernakulam against the petitioners as accused Nos. 1 to 3 alleging offence punishable under S.138 of the Negotiable Instruments Act, 1985 (hereinafter called 'the Act') alleging that a cheque for Rs. 51 lakhs issued by the second accused, on behalf of the first accused partnership firm of which the third accused is also a partner, as the Managing Partner, towards the discharge of the debt due to the second respondent was bounced and the accused did not pay the amount in spite of the notice issued by the second respondent intimating about the dishonour of the cheque and demanding payment. The learned Magistrate took cognizance of the offence and issued process to the accused. On receipt of the summons, the accused have filed these petitions to quash the proceedings before this Court.

(3.) The learned Senior Counsel appearing for the petitioner has mainly raised three contentions before this Court to substantiate the contentions of the petitioners that the complaint filed by the second respondent is absolutely unsustainable and the cognisance taken by the Magistrate is illegal and, therefore, this Court should exercise its jurisdiction under S.482 of the Code of Criminal Procedure to quash the complaint and the entire proceedings. The first contention raised by the petitioners is that the cheque issued for Rs. 51 lakhs in this case is not in discharge of any debt or legally enforceable liability as contemplated under the Act and it was issued by way of security in pursuance of the agreement and as such the provisions of S.138 of the Act are not attracted in this case. The second contention raised by the petitioners is that the cheque in question was issued by the second accused in respect of his personal account in the bank and, therefore, it cannot be contended that the cheque was issued on behalf of the partnership firm. The third contention is that even though it is construed that the cheque in question is issued on behalf of the first accused partnership firm, the third accused who is the wife of the second accused and only a sleeping partner of the firm, is not liable to this case in view of the provisions of S.141 of the Act.