Point of Law: As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings.

ORDER :

These are Criminal Miscellaneous Cases filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience). The petitioners in Crl.M.C.Nos.226/2022, 1986/2022 and 1691/2022, who are accused Nos.1 and 2 in S.T.Nos.335/2019, 336/2019 and 337/2019 respectively, on the file of the Judicial First Class Magistrate Court-II, (Forest Offences), Manjeri, seek quashment of Annexure-A9 complaints in the above cases. The respondents herein are State of Kerala as well as the original complainant in the above cases.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor and the learned counsel for the 2nd respondent.

3. It is argued by the learned counsel for the petitioners that there was no proper legal notice mandated under Section 138(b) of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short) and therefore, the entire cognizance is bad in law. Accordingly, he pressed for quashment of the respective complaints. The crux of the argument of the learned counsel for the petitioners is that on dishonour of the cheques alleged to be issued by KAYPEE WIRE PRODUCTS, the 2nd respondent herein/the complainant in all these cases issued notices in a wrong address and as such the notices were returned with the endorsement `no such addressee’. Therefore, the complaints are liable to be quashed, for want of notice. In support of this contention, the learned counsel placed 2 decisions. The first decision cited is one reported in [2012 KHC 4244 : 2012(12) KLD 16 : 2012 (2) KHC SN 36 : 2012 (4) SCALE 644 : 2012 (2) KLJ 456 : 2012 (2) KLT 736 : 2012 (5) SCC 661 : AIR 2012 SC 2795 : 2012 CriLJ 2525], Aneeta Hada & Ors. V. M/s.Godfather Travels & Tours Pvt. Ltd. & anr. In the said decision, the Apex Court considered maintainability of prosecution under Section 141 of the N.I Act and held that arraigning a company as an accused is imperative and no prosecution would lie without arraigning the company as an accused.

4. In response to this argument, the learned counsel for the 2nd respondent placed a decision of the Apex Court reported in [2021(6) KHC 368 : 2021 KHC OnLine 6691 : 2021 (13) SCALE 392 : 2021 (4) KLJ 834 : AIR 2021 SC 5726 : 2021 (6) KLT OnLine 1136 : 2022 (2) SCC 355 : 2021 SCC OnLine SC 1031 : 2022 (1) SCC (Cri) 514], Bhupesh Rathod v. Dayashankar Prasad Chaurasia & anr. and argued that in the said decision the Apex Court held, while considering the format of the complaint, that it is quite apparent that the Managing Director has filed the complaint on behalf of the Company. There could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company.

5. As far as the decision in Aneeta Hada & Ors. V. M/s.Godfather Travels & Tours Pvt. Ltd. & anr.’s case (supra), the said ratio has no application in the present cases since in the present complaints the company is the 3rd accused where partners got arrayed as accused Nos.1 and 2.

6. The second decision cited by the learned counsel for the petitioners is the decision of this Court reported in [2022 KHC 347 : 2022 (2) KLD 84 : 2022 KHC OnLine 347], Preesa Foods and Spices (India) Private Limited v. State of Kerala & Ors. and it is argued that 5 ingredients are essential and mandatory to be complied with by the person launching a prosecution under Section 140 of the N.I Act alleging commission of offence punishable under Section 138 of the N.I Act for enabling a court to take cognizance. In para.21 of this judgment, this Court summarized the 5 ingredients as under:

“21. xxxx xxxx xxxx xxxx

When the drawer of the cheque is a company, demand notice as demanded by clause (b) of proviso to S.138 NI Act must be issued to the company, represented by it’s Managing Director. If notice is not issued, the complainant can be taken to