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2012 DIGILAW 763 (KER)

R. Raju v. Sari S. Nath, Power Of Attorney Holder

2012-08-10

P.S.GOPINATHAN

body2012
JUDGMENT P.S. Gopinathan, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.), filed by the 2nd accused in C. C. No. 1025/2004 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. The first respondent herein filed Annexure A1 complaint against M/s. Four Brite Associates represented by its Managing Partner and three other partners. In Annexure A1, the petitioner was the 4th accused. Since the petitioner and the 3rd accused did not turn up in spite of the service of the process the case against the 1st and 2nd accused were split up and tried. The case against the petitioner and the third accused were renumbered as above with the third accused as the 1st accused. After trial, by Annexure 2, the trial court arrived at a finding of guilty as against the first and 2nd accused. Assailing the above conviction and sentence Crl.Appeal 75/2005 was preferred. While partly allowing the appeal, the 2nd accused was acquitted for the reason that there is no pleading and evidence to show that the 2nd accused, who was one of the partner, was any way responsible for the conduct or the affairs of the firm. 2. Now by this petition, the petitioner seeks to quash Annexure A1 complaint against the petitioner with a plea that there is no averment in the complaint that the petitioner, who is one of the partners, is responsible for the affairs or the conduct of the business of the firm and therefore no prosecution is sustainable against the petitioner. 3. In support of the arguments, the learned counsel for the revision petitioner would rely upon the decisions reported in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another[(2010) 3 SCC 330] and Anita Malhotra v. Apparel Export Promotion Council and Another [(2012) 1 SCC 520]. 4. I have carefully, gone through the averments in Annexure A1 complaint. There is only vague statement that the petitioner and 1st accused are partners of the firm. There is no specific mention that the petitioner is responsible for the conduct or the affairs of the business of the firm. It is not in dispute that the petitioner or the 1st accused are not signatories to the cheque, basing upon which the prosecution was launched. In Anita Malhotra's case (Supra) referring to the National Small Industries Corpn. There is no specific mention that the petitioner is responsible for the conduct or the affairs of the business of the firm. It is not in dispute that the petitioner or the 1st accused are not signatories to the cheque, basing upon which the prosecution was launched. In Anita Malhotra's case (Supra) referring to the National Small Industries Corpn. Ltd.'s case, at paragraph 22 held as follows: "22. This Court has repeatedly held that in case of a Director, the complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused company for conduct of it business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient." In the light of the decisions of the Apex court and in the absence of the pleadings in the complaint regarding the responsibility of the petitioner and 1st accused for the affairs or the conduct of the business of the firm and in the circumstance that the petitioner and 1st accused are not signatories to the cheque, I find that the prosecution against the petitioner is not at all sustainable, since there is no specific pleading as contemplated under Section 141 of the Negotiable Instruments Act to connect the petitioner and the 1st accused to the offence alleged. The prosecution is liable to be interfered under Section 482 of the Code of Criminal Procedure. Otherwise, result would be abuse of the process. In the result, this petition is allowed. The complaint and consequential proceedings thereon initiated against the petitioner would stand quashed. Since the prosecution against the 1st accused is also on identical pleadings, the case against him alsowould stand quashed.