Kerala High Court
Shaji vs Kerala State Co-Operative Marketing ... on 22 February, 2006
Equivalent citations: I(2007)BC294, 2006(2)KLT289
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. This revision is filed by the second accused who was the secretary of a Cooperative Society against the order rejecting his request for discharging him from CC. 243 of 1991. The Managing Director of Kerala State Co-operative Marketing Federation Limited had filed a complaint before the Chief Judicial Magistrate's Court, Thiruvananthapuram, alleging that the accused have committed offence under Section 138 of the Negotiable Instruments Act. First accused is the Kalayapuram Girivarga Service Co-operative Society and A2 and A3 are the Secretary and President respectively of that society.
2. The second accused preferred an application for discharging him from the criminal case stating that he has not issued the cheque in his personal capacity and that the cheque was issued as security by the first accused society. He has also averred that he is no longer the Secretary of the society and he may be discharged. Complainant filed objection to the application stating that second and third accused had issued the cheque while acting as President and Secretary of the society and the criminal liability would not shift to the successor in office as contended by the second accused. Trial court found no reason to discharge the second accused and dismissed the petition, against which this revision has been preferred.
3. The second accused has obtained a stay from this Court on 12-S-1996. C.C. No. 243 of 1991 was filed in 1991, which is kept pending for over 15 years. It is evident from the facts disclosed that the first accused is a Cooperative Society and A2 and A3 are Secretary and President respectively. Cheque was issued by the second and third accused in their capacity as President and Secretary of the first Accused society. Counsel appearing for the second accused submitted that since the second accused is no longer Secretary of the society he is not liable to be proceeded with and the complainant may be directed to implead the present President and Secretary.
4. I find it difficult to accept that contention. In this connection I may refer to Section 141 of the Negotiable Instruments Act which is extracted herein for easy reference.
141. Offences by companies:-- (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial Corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation: - For the purposes of this section:-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
As per Section 141(1) of the Act if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Explanation to Section 141 states that 'company' means any body corporate and includes a firm or other association of individuals. Explanation has given definition to 'company' and 'director'. Explanation is of wide amplitude which takes in a firm or other association of individuals. When we read the explanation with Sub-section (1) of Section 141 it is clear that if the person committing an offence under Section 138 is a registered society every person who at the time the offence was committed, was in charge of, and was responsible to the society for the conduct of the business of the society as well as the society shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
5. Above being the legal position I am of the view since second accused was admittedly Secretary of the first accused society when the cheque was issued the application filed him for discharging him from C.C. 243 of 1991 cannot be sustained, I therefore find no infirmity in the order passed by the trial court. Revision therefore lacks merit and the same would stand dismissed. Send back the records to the trial court forthwith.