Gracy Thomas vs State of Kerala and Indrajith Panicker

R. Basant, J.—The Petitioner faces an indictment in a prosecution u/s 138 of the N.I. Act. The cheque is for an amount of Rs. 40 lakhs. The cheque shows that it is signed by the petitioner as a Trustee of ''Suja Family Trust''. The said cheque was allegedly issued by the petitioner for the due discharge of a legally enforceable debt/liability. The said cheque when presented was dishonoured by the Bank only on the ground that the funds were insufficient. Notice of demand was issued. It is duly received and acknowledged. It was replied to. It was contended that there was no liability to discharge which the cheque could have been issued. The complainant is a total stranger to the petitioner, it was contended. The cheque was forged it was further suggested. Subsequently, the petitioner is alleged to have filed a complaint before the local police wherein also the allegation is raised that the cheque is forged and the petitioner or the Trust has no liability to the complaint.

The complainant filed a complaint before the learned Magistrate. Cognizance has been taken. The petitioner has not entered appearance. Before that, the petitioner has come to this Court with a prayer that the powers u/s 482 of the Cr.P.C. may be invoked to quash the proceedings.

The learned counsel have been heard. The learned Counsel for the petitioner raised various contentions. First of all, it is contended that the Trust is sui juris and in the circumstances without adopting the Trust as an accused, the trustee cannot be proceeded against. It is by now trite that in a prosecution for commission of an offence by a company, it is not invariable that the company must be made an accused before one who is responsible to the company for the conduct of its affairs is prosecuted. The fact that the Trustee is not arrayed as an accused cannot in these circumstances, deliver any advantage to the petitioner.

It is next contended that there is not even an averment that the petitioner is in charge and responsible to the company for the conduct of its affairs. In the total absence of any such specific averment, the petitioner does not deserve to stand the trauma of this prosecution, it is contended. It cannot be lost sight, of that the cheque is signed by the petitioner as the Trustee on behalf of the Trust. The words in the statute appearing in Section 141 of the N.I. Act need not necessarily be repeated as magic words in every complaint. The question is whether the averments indicate that the petitioner is in charge of and responsible to the company for the conduct of its affairs. A person who signed the cheque on behalf of the Trust cannot, at any rate, request the court to invoke its powers u/s 482 of the Cr.P.C. to quash the proceedings on the ground that there is no specific averment in the complaint that such signatory was in charge and responsible to the trust for the conduct of its affairs.

There is nothing to show that the Trust had any liability, it is contended. It is not at all necessary that the liability for the discharge of which the cheque is issued must be one of the drawer himself to attract the provisions of Section 138 of the N.I. Act. Trust can issue the cheque to discharge the liability of any one of the trustees also and that fact will not have any bearing while ascertaining culpability u/s 138 of the N.I. Act.

It is further contended that neither the petitioner nor the Trust has any liability Presumption u/s 139 of the N.I. Act must operate at this stage with option to the petitioner to rebut the presumption. The cheque is a stolen one, it is further contended. This again is a contention which ought to be urged and substantiated in the course of the prosecution and cannot operate as a valid reason in the wake of the presumption u/s 139 of the N.I. Act to invoke the powers u/s 482 of the Cr.P.C. to quash the same.

It is contended that there is a contention raised in the reply notice as well as in the complaint filed before the police that the cheque is forged. I note that there is no specific contention raised that the signature appearing in the cheque is not that of the petitioner or that she is not a trustee of the Suja Family Trust in whose name the cheque is issued.

In the light of the above circumstances, I am satisfied that this is not a fit case where the discretions u/s 482 of the Cr.P.C. deserves to be invoked to quash the proceedings initiated against the petitioner.

In the result, this petition is dismissed. I may hasten to observe that the dismissal of this Crl.M.C. shall not in any way fetter the rights of the petitioner to raise all appropriate and necessary contention before the learned Magistrate. He must consider such contentions uninfluenced by any observations made in this order. I make it clear that I have not intended to express any opinion on merits regarding the rival contentions or the right of the petitioner to raise any other contentions. I have only intended to held that the invocation of the power u/s 482 of the Cr.P.C. is not necessary, warranted or justified in the circumstances.

The learned Counsel for the petitioner submits that the petitioner is a helpless widow. She resides permanently at Mumbai. She may be permitted to appear through her counsel. If the petitioner is unable to appear before the learned Magistrate, it is for the petitioner to make appropriate application claiming exemption before the learned Magistrate. Needless to say, that learned Magistrate must consider such application on merits and expeditiously. Sufficient general directions have already been issued and it is not necessary to issue any special or specific directions in that regard.