IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 411 of 2007()
1. C.G.RAJEEV, S/O.GANGADHARAN,
... Petitioner
2. C.G.PRAVEEN, S/O.GANGADHARAN,
Vs
1. MANOJ.N.M., S/O.MOHANAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :12/06/2007
O R D E R
R. BASANT, J.
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Crl.R.P.No. 411 of 2007 &
Crl.M.C.No. 415 of 2007
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Dated this the 12th day of June, 2007
O R D E R
The petitioners in these proceedings are accused 3, 4 and 5 in a
prosecution initiated under Section 138 of the N.I. Act. Cognizance
has been taken by the learned Magistrate. Accused 3 and 4 have
come before this Court with Crl.R.P.411 of 2007 complaining about
the cognizance taken, whereas the 5th accused has come with
Crl.M.C. 415 of 2007 with a prayer to quash the proceedings initiated
against him.
2. The crux of the allegations is that the first accused firm had
issued a cheque to the respondent/complainant. That cheque was
signed by the second accused Managing Partner of the firm. Accused
3, 4 and 5 are alleged to be the Partners of the firm. In paragraph 1 of
the complaint there is an assertion that the second accused in his
capacity as Managing Parter of the first accused “with the knowledge
and consent of other accused issued the cheque in question.” The
petitioners pray that invoking the revisional jurisdiction of this Court,
if not the extra ordinary inherent jurisdiction under Section 482
Crl.R.P.No. 411 of 2007 &
Crl.M.C.No. 415 of 2007
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Cr.P.C., proceedings initiated against the petitioners may be quashed in as
much as the complaint does not contain the requisite crucial and vital
averments to attract culpability under Section 141 of the N.I. Act. Counsel
for accused 3 to 5 rely on the decision in S.M.S. Pharmaceuticals Ltd. v.
Neeta Bhalla (2005 (4) KLT 209 (SC). In as much as the necessary and
vital averments are not there, the prosecution is liable to be quashed. This
in short is the plea raised.
3. Of course, a contention is raised that the Partners have ceased to
be Partners on the relevant date. That question cannot be considered with
the materials presently available. The parties will have to be relegated to
raise those contentions at the stage of trial. The crucial question that falls
for determination is whether the complaint deserves to be quashed and
cognizance deserves to be set aside for the reason that there is no crucial
averment as insisted by the dictum in S.M.S. Pharmaceuticals Ltd.
4. Except that they are Partners and the Managing Partner had issued
the cheque on behalf of the firm “with the knowledge and consent” of the
petitioners herein there is no other averment whatsoever against the
petitioners.
Crl.R.P.No. 411 of 2007 &
Crl.M.C.No. 415 of 2007
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5. The learned counsel for the complainant was requested to explain
how these averments can be held to be sufficient to attract penal liability
under Section 141 of the N.I. Act read in the light of the decision cited
supra. The learned counsel for the complainant contends that ritualistic
insistence on repetition and re-iteration of the words of the Statute under
Section 141 need not be insisted. I am in agreement with the learned
counsel. Such insistence need not be made. Is there any averment which
would satisfy the requirement of Section 141? That is the crucial question
and that question has got to be answered against the complainant in the
light of the only averment to which I have already referred to. That the
petitioners are Partners and that the Managing Partner had issued the
cheque “with the knowledge and consent” of the petitioners is certainly
insufficient to attract culpability under Section 141. The dictum in S.M.S.
Pharmaceuticals Ltd. remains totally unsatisfied by the specific
averments, which I have referred to above.
6. It follows that the petitioners are entitled to succeed. These
petitions are in these circumstances allowed. Cognizance taken against the
petitioners (accused 3 to 5) for the offence under Section 138 of the N.I. Act
Crl.R.P.No. 411 of 2007 &
Crl.M.C.No. 415 of 2007
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in C.C.1147 of 2006 pending before the J.F.C.M. Court -I, Thrissur is
hereby quashed/set aside. The prosecution against the co-accused shall,
needless to say, continue.
(R. BASANT)
Judge
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