IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3509 of 2010()
1. INDO ARYA CENTRAL TRANSPORT LTD
... Petitioner
2. RATHAN PRAKASH ARYA
3. YOGESH ARYA, DIRECTOR
4. DUSHYANTH ARYA, DIRECTOR
5. DAYANANTHA ARYA, DIRECTOR
Vs
1. JOHNY PAUL, RUBBER DEALER
... Respondent
For Petitioner :SRI.M.REVIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/10/2010
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C No.3509 of 2010
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Dated this the 14th October, 2010
O R D E R
Petitioners are the accused in C.C No.732/2006 on
the file of Judicial First Class Magistrate’s Court,
Kothamangalam. First petitioner is the company and
petitioners 2 to 5 the Managing Director and Directors of
the Company. Petition is filed under Section 482 of Cr.P.C
to quash Annexure -A complaint filed by the 1st
respondent and taken cognizance for the offence under
Section 407 of Indian Penal Code.
2. Learned counsel appearing for the petitioners
pointed out that by Annexure-C order in Crl.M.C No.
1652/2007 and connected cases, this Court has quashed
an identical complaint filed against petitioners 2 to 5, the
Managing Director and Directors on the ground that
complaint does not disclose any allegation that petitioners
2 to 5 were in charge of and were responsible for the
business of the 1st petitioner company and therefore
cognizance taken against petitioners 2 to 5 is bad.
3. Learned counsel also pointed out that Crl.M.C
Crl.M.C No.3509 of 2010
2
No.1655/2007 filed earlier was dismissed as withdrawn
and in the light of Annexure-C order, cognizance taken
against petitioners 2 to 5 is to be quashed. Though notice
was served on the 1st respondent he did not appear.
4. Crl.MC No.1655/2007 was filed by the
petitioners for the same relief. By order dated 29.5.2007,
Crl.M.C was dismissed as withdrawn. The order shows
that after discussions at the Bar, learned counsel for the
petitioners sought permission to withdraw the Crl.M.Cs
without prejudice to their rights to raise all relevant
contentions before the learned Magistrate at the
appropriate stage. In the light of that order, petitioners
are not entitled to seek the same relief once again before
this Court, when the earlier petition filed was withdrawn
with liberty to approach the learned Magistrate and to
raise the contentions therein. Petitioners are entitled to
seek an order of discharge under Section 239 of Cr.P.C in
the light of Annexure-C order as the complaint does not
disclose any allegation against petitioners 2 to 5 to the
effect that they were either in charge of or responsible to
Crl.M.C No.3509 of 2010
3
the business of the 1st petitioner company. Learned
counsel submitted that presence of the petitioner may not
be insisted for the purpose of claiming discharge under
Section 245 (1) of Cr.P.C. In the light of Annexure-C order.
if the petitioner files an application before the learned
Magistrate to hear and dispose the application for
discharge by dispensing his presence, learned Magistrate
not to insist for his personal appearance. If any non-
bailable warrant is pending and petitioner files an
application to withdraw the non-bailable warrant on the
facts and circumstances of the case, learned magistrate to
grant bail.
Petition is disposed of.
M.SASIDHARAN NAMBIAR
JUDGE
ma
