Raja Vijayaraghavan V., J.

1. Whether the proprietor of concern can be held criminally liable under section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act', for short) for dishonor of a cheque drawn by his authorised signatory? Or alternatively can the authorized signatory who has drawn the cheque be successfully prosecuted under section 138 of the Negotiable Instruments Act notwithstanding the fact that the cheque has not been drawn on an account maintained by him? These are the subtle questions that arises for consideration in these petitions filed under section 482 of the Code of Criminal Procedure. The answers to these questions would decide the fate of these Criminal Miscellaneous Cases which have been referred to the Division Bench under section 3 of the High Courts Act by a learned Single Judge of this Court. The learned Single judge while referring the matter has disagreed with the view taken by another single Judge in Jayaprabha Harikumaran Thampi V. Don Bosco and Another [2015 (1) KLT 1022].

2. Before dealing with the question of law involved, we may briefly advert to the allegations in the complaints which have been annexed to the petitions.

3. There are two sets of cases.

4. Crl.M.C.Nos. 6719, 6725, 7133 of 2014 and Crl.M.C.Nos.8174, 8430 of 2016 are filed under section 482 of the Code of Criminal Procedure by the Chairman and Proprietor of Universal Group of Institutions, Fort Road, Kannur seeking termination of criminal proceedings initiated against him by the respective complainants. In all these cases, the allegation is that the proprietorship concern borrowed various sums of money from individuals and in discharge of the liability, the authorized signatory, who is also arrayed as a co-accused, issued cheques which when presented were dishonored.

5. Crl.M.C.No.3909 of 2016 is a petition filed under section 482 of the Code of Criminal Procedure by the 2nd accused in S.T.No.55 of 2016 on the file of the Chief Judicial Magistrate, Kottayam. The prosecution allegation is that the petitioner is the Manager of Allianz Financial Corporation, a private financial institution, of which the 1st accused is the proprietor. Towards liability due to the complainant, the petitioner in his capacity as the office manager, is alleged to have issued a cheque which was dishonored on its presentation. This has led to the institution of the prosecution under section 138 of the N.I. Act.

6. In the first set of cases, the contention advanced by the learned counsel is based on Jayaprabha (supra). According to the petitioner, though he is the proprietor and he is the person who is maintaining the account, the cheque has been signed and issued by the authorised signatory. This, according to the petitioner, will not satisfy the mandate under section 138 of the N.I. Act.

7. In the solitary petition filed by the office manager, in order to persuade the court to invoke its extraordinary power, it is contended that the prosecution cannot be sustained as the account is maintained by the proprietary concern and the drawer, not being the account holder, cannot be held liable.

8. Before proceeding further, we may indicate that in Jayaprabha (supra), the brief fact was that for discharge of the liability due, a cheque was issued by the authorized signatory of a proprietorship concern to its creditor. The proprietor incidentally was the wife of the power of attorney holder. The power holder was authorized to operate the bank account of the concern independently. When the cheque drawn by the power holder was dishonored, prosecution proceedings were initiated before the learned Magistrate. In the trial which followed, the wife/proprietor was convicted of the offence. The said finding was confirmed in appeal as well and the matter was taken up before this Court in revision. As the cheque was drawn by the power of attorney holder and not the proprietor, a contention was taken that the conviction arrived at by the trial court and confirmed in appe