Baburajan v. State of Kerala and Muthoot Capital Services Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **Crl.MC.No.7933 OF 2019(B)** **ST 681/2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (MPs/MLAs) ERNAKULAM** ## **PETITIONER/ACCUSED:** **BABURAJAN AGED 59 YEARS** **S/O.NANU, CHARUVILAPUTHEN VEEDU, KAKKOLIL, KUNDARA.P.O., KOLLAM-691501.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/STATE & COMPLAINANT** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 M/S.MUTHOOT CAPITAL SERVICES LTD., MUTHOOT TOWERS, M.G.ROAD, ERNAKULAM-682035, REPRESENTED BY ITS LEGAL ASSISTANT AND AUTHORIZED PERSON SRI.P.D.VELAYUDHAN,( NOW REPRESENTED BY AKHIL T., S/O.THULASEEDHARAN, MADATHILRAJ BHAVAN, STADIUM LINK ROAD, KALOOR, KOCHI-682025.)** ## **SRI C K PRASAD- PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-12-2019, THE COURT ON 16-12-2019 PASSED THE FOLLOWING:** Crl.M.C.No.7933/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7933 of 2019 ------------------------------------------------Dated this the 16[th] day of December, 2019 ## **O R D E R** The petitioner is the sole accused in the case which is based on Annexure-A1 complaint filed by the second respondent (hereinafter referred to as 'the complainant') against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2 The material averments in Annexure-A1 complaint are as follows: The complainant is a non-banking financial company incorporated under the Companies Act, 1956. The accused had entered into a hypothecation agreement with the complainant company and availed a loan for purchasing a vehicle. As per the agreement, the accused had agreed to repay the hire purchase amount to the complainant company in monthly instalments. The accused made default in repayment of the amount. In discharge of the liability due to the complainant company, the Crl.M.C.No.7933/2019 3 accused signed, executed and issued a cheque dated 22.06.2016 for Rs.72,000/- to the complainant company. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount of the cheque. 3. This petition is filed under Section 482 Cr.P.C for quashing Annexure-A1 complaint and the proceedings initiated against the petitioner on the basis of it. 4. Heard learned counsel for the petitioner. 5. Learned counsel for the petitioner submitted that the hire purchase facility was availed by the petitioner from the complainant for purchasing a motor cycle. Learned counsel would submit that the motor cycle was repossessed by the complainant company on 30.07.2015. Learned counsel would contend that the agreement between the petitioner and the complainant got terminated on repossession of the vehicle by the complainant company and therefore, there was no valid Crl.M.C.No.7933/2019 4 consideration for the cheque allegedly issued by the petitioner to the complainant. Learned counsel has also contended that arbitration proceedings had been initiated against the petitioner which culminated in passing an award against the petitioner. In such circumstances, learned counsel would submit that Annexure-A1 complaint and the criminal proceedings initiated against the petitioner on such complaint are not maintainable. 6. There is specific averment in the complaint that the accused had entered into a hypothecation agreement with the complainant company and availed loan for purchasing a vehicle. There is also specific averment in the complaint that the accused had agreed to repay the hire purchase amount in monthly instalments but he made default in repayment of the amount. There is a specific averment in the complaint that the accused signed, executed and issued a cheque dated 22.06.2016 for Rs.72,000/- to the complainant company in discharge of the liability. Annexure-A1 complaint also contains other necessary averments regarding the formalities which were complied with by the complainant company before filing the complaint against the petitioner. Crl.M.C.No.7933/2019 5 7. There is no merit in the contention of the learned counsel for the petitioner that since the vehicle was repossessed by the complainant company on 30.07.2015 the complaint which is based on the dishonour of the cheque issued by the petitioner is not maintainable. Even if it is accepted that the agreement between the accused and the complainant company had got terminated on repossession of the vehicle, it is to be noted that, in the instant case, the cheque was issued by the accused subsequent to the repossession of the vehicle, that is, on 22.06.2016 for the amount due to the complainant company at that time. 8. Learned counsel for the petitioner placed heavy reliance upon the decision of this Court in **Sudha Beevi v. State of Kerala (2004 (2) KLT 746)** in support of his contention that the complaint filed against the petitioner for an offence under Section 138 of the Act is not maintainable. The decision in **Sudha Beevi** (supra) has no application to the facts of the present case. In **Sudha Beevi** (supra), the accused had given post-dated cheques towards the monthly instalments to be paid by him. Each of the cheque had to be presented for encashment Crl.M.C.No.7933/2019 6 on an agreed date every month. In such a situation, this Court had held that, once the vehicle is repossessed and once the agreement between the accused and the financing company got terminated, the company could not have presented the cheque in the bank for encashment. The fact situation in the present case is different. In the instant case, the allegation is not that the petitioner had given post-dated cheque at the time of execution of the agreement. Here, the cheque was allegedly issued by the accused after repossession of the vehicle, for the amount allegedly due from him to the complainant company. 9. The arbitration proceedings initiated against the petitioner by the complainant company culminated into an award against the petitioner. Annexure-A2 is the copy of the award. It shows that the award was passed on 10.07.2017. The award shows that arbitration proceedings were initiated on 15.09.2016, subsequent to the filing of Annexure-A1 complaint against the petitioner. Commencement of arbitration proceedings and passing of award against the petitioner cannot have any effect on the maintainability of the complaint (See **M/s.Sri Krishna Agencies v. State of A.P : AIR 2009 SC 1011** ). On the basis Crl.M.C.No.7933/2019 7 of the arbitration award, the petitioner may prove during the trial of the case that the amount covered by the cheque was not due to the complainant company on the date of issuing the cheque. 10. The petitioner has raised other factual disputes in the petition with regard to the execution of the cheque by him and other matters. Such factual disputes cannot be considered by this Court in a petition filed under Section 482 Cr.P.C. The petitioner is at liberty to raise all such contentions at the appropriate stage before the trial court. 11. There is no merit in this petition filed under Section 482 Cr.P.C for quashing Annexure-A1 complaint. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr/13/12/2019** Crl.M.C.No.7933/2019 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE COMPLAINT IN S.T.NO.681/2018 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (MPS/MLAS), ERNAKULAM.** **ANNEXURE A2 THE TRUE COPY OF THE AWARD IN NO.M.C.SL/LT5/390/2016. ANNEXURE A3 THE TRUE CERTIFIED COPY OF THE CHEQUE BEARING NO.016841 DATED 22.6.2016.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE