A.K. Nissar v. State of Kerala and Ajimole

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **Crl.MC.No.3286 OF 2015** **AGAINST THE ORDER/JUDGMENT IN CC 674/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PARAVOOR** **CRIME NO.1251/2012 OF PARAVOOR POLICE STATION , KOLLAM** ## **PETITIONER/1ST ACCUSED:** **A.K.NISSAR AGED 65 YEARS S/O.ABDUL KARIM, VADAKKEY BHAGOM, CHERIYIL, KOTTAPPURAM VILLAGE.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/STATE/INFORMANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031, (CRIME NO.1251/2012 OF PARAVUR POLICE STATION, KOLLAM DISTRICT).** **2 AJIMOLE AGED 23 YEARS CHAVIRIKUZHI HOUSE, THEKKUMBHAGOM, KOLLAM DISTRICT.** **R1-2 BY ADV. SRI.V.JAYAPRADEEP R1 BY ADV. SMT.O.A.NURIYA** ## **SRI.RAMANAND,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.3286 of 2015 2 ## ANNIE JOHN, J. - - - - - - - - - - - - - - - - - - - Crl.M.C No.3286 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of Septermber, 2019 ## ORDER The petitioner, who is the first accused in Crime No. 1251 of 2012 of Paravur Police Station for offences punishable under Sections 420 and 468 r/w Section 34 IPC, seeks to quash the entire proceedings in CC No.674 of 2014 pending before the files of Judicial Magistrate of First Class Court, Paravur, Kollam. The aforesaid crime was registered by the 1[st] respondent on the strength of a private complaint filed by the 2[nd] respondent before the Munisiff Magistrate Court, Paravur. According to the 2[nd] respondent, the 2[nd] respondent had entrusted a cheque leaf to the 2[nd] accused for the purpose of encashing the cheque from the bank. The 2[nd] accused, who is none other than the husband of the 2[nd] respondent, entrusted the cheque to the petitioner and he presented the same Crl.M.C No.3286 of 2015 3 in the bank and it was dishonoured for want of sufficient funds. Using that cheque, the petitioner lodged a prosecution against the 2[nd] respondent and thereby, the accused has committed offences punishable under Sections 420 and 468 r/w Section 34 of IPC. After investigation, Annexure-II final report was submitted in Crime No.1251/2012 and the Judicial Magistrate of First Class, Paravur, has taken the case on file as CC No.674/2014. 2. The learned counsel for the petitioner argued that the allegation levelled against the petitioner is imaginary and the same is liable to be quashed. In fact, the present attempt on the part of the informant is an afterthought to resist the prosecution lodged by the petitioner under Sections 138 of the Negotiable Instrument Act (for short 'NI Act'). The informant had borrowed an amount of Rs.5,00,000/- from the petitioner on a condition that she will repay the debt within 6 Crl.M.C No.3286 of 2015 4 months. The 2[nd] respondent has issued a cheque in favour of the petitioner to discharge the liability and the 2[nd] respondent has received summons from the court as a counterblast, submitted a private complaint before the learned Magistrate and forwarded the complaint under Section 156(3) of Cr.PC and thus the present crime was registered. The attempt of the informant is to pressurize the petitioner to withdraw the prosecution lodged under Section 138 of NI Act against the 2[nd] respondent. In fact, the continuation of the prosecution is an abuse of process of court. The prayer in the petition is to quash all further proceedings in CC No.674/2014 on the file of the Judicial First Class Magistrate Court, Paravur, Kollam. 3. The main argument advanced by the petitioner's counsel that the crime registered against the petitioner under Sections 420 and 468 r/w 34 of IPC is only as a counterblast to the complaint lodged by the petitioner under Section 138 of NI Act against the 2[nd] Crl.M.C No.3286 of 2015 5 respondent. The allegation is that the 2[nd] respondent has borrowed Rs.5,00,000/- from the petitioner and he has given a cheque, which was dishonoured due to want of sufficient funds. On the strength of that, the petitioner has filed a complaint against the 2[nd] respondent and Annexure - III is the complaint, which was filed on 25[th] June, 2012. Annexure-I is the copy of the FIR in Crime No.1251/2012. Annexure-II is the certified of the final filed in Crime copy report No.1251/2012. Annexure-I complaint was lodged on 6[th] September, 2012, i.e., after the filing of Annexure-III complaint dated 25[th] June, 2012. It is very interesting to note that the 2[nd] respondent has initiated the criminal proceeding against her husband as well as the petitioner herein. The case of the 2[nd] respondent is that she has given a cheque to her husband, who is arrayed as 2[nd] accused in Annxure II and he has handed over the cheque to the petitioner. Accordingly, the cheque Crl.M.C No.3286 of 2015 6 received by her was dishonoured. Now, the case advanced by the petitioner that the purpose of the filing of the Annexure II charge sheet is only to overcome the liability to re-pay Rs.5,00,000/-, which was borrowed by the 2[nd] respondent. The learned counsel for the petitioner has relied on the decision in Gulati D.P., Manager Accounts, M/s. Jetking Infotrain Ltd. v. State of Uttar pradesh and Another (2015 KHC 2144), wherein it has held that when the accused files a criminal complaint as counter to Section 138 petition, the court should not allow a litigant to file vexatious complaints by setting criminal law into motion, which is a pure abuse of process of law. 4. It is true that the petitioner has initiated a case against the 2[nd] respondent under Section 138 of NI Act. After a long time, the 2[nd] respondent has filed a criminal complaint against the petitioner by stating that her cheque was misused by the petitioner as well as the 2[nd] Crl.M.C No.3286 of 2015 7 respondent. The facts narrated in the above cited ruling is not applicable in this case. In the instant case, the dispute was between two persons and according to the 2[nd] respondent, her husband has misused the cheque belongs to her and accordingly, she was cheated by the petitioner as well as the 2[nd] respondent. These are the matters to be considered after taking evidence. Moreover, the petitioner can approach before the concerned court and raise the grounds before framing charge and accordingly, he can get a discharge from the lower court comparing the two cases together. I am of the considered opinion that the petitioner can raise the objections as to whether the offences alleged against him are made out or not, at the time of framing of the charge before the trial court. As per Section 482 of the Criminal Procedure Code, it is clear that the object of exercise of power under the Section is to prevent abuse of process of law and to secure the ends of justice. It is Crl.M.C No.3286 of 2015 8 true that the Courts have to be very careful while exercising the power under Section 482 of Cr.PC. At the same time, we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is pure abuse of process of law and it has to be interdicted at the threshold. 5. In this case, the 2[nd] respondent has issued a cheque to the petitioner; but she has stated that a joint account was started in the name of herself, her husband and husband's mother. The question whether the cheque was handed over to the petitioner with the consent of the 2[nd] respondent or not is a matter to be considered at the time of evidence. I do not find any ground to invoke Section 482 of Cr.PC. at this stage. However, the petitioner is at liberty to approach the court below and submit an objection, which was stated before this Court and to get a discharge from the same Crl.M.C No.3286 of 2015 9 court. Therefore, I am not inclined to allow this Crl.M.C. With the above observations and directions, this petition is dismissed. Sd/ANNIE JOHN, JUDGE bng/26.08.19 Crl.M.C No.3286 of 2015 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE -I** **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1251/2012 REGISTERED BY PARAVUR POLICE STATION, KOLLAM DISTRICT.** **ANNEXURE -II CERTIFIED COPY OF THE FINAL REPORT IN CRIMR NO.1251/12 OF PARAVUR POLICE STATION, KOLLAM DISTRICT.** **ANNEXURE III COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVUR, UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.** ## **RESPONDENTS EXHIBITS:NIL**