Biju Krishna Shyamala v. State of Kerala (CRL.M.C Nos. 8195/2022 & 8192/2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **CRL.MC NO. 8195 OF 2022** **AGAINST THE ORDER/JUDGMENT IN STC NO.358/2019 OF JUDICIAL FIRST** ## **CLASS MAGISTRATE-I,HOSDRUG** ## **PETITIONER/ACCUSED:** **BIJU KRISHNA SHYAMALA AGED 42 YEARS, S/O. V.KRISHNAN, RESIDING AT BIJU NIVAS, MELANGOT P.O., BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT PIN - 671315 BY ADVS. VIMAL VIJAY K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH VANDANA MENON** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 VIJU PUTHIYAVALAPPU AGED 43 YEARS, S/O. PUTHIYAVALAPPU KUNHIKANNAN, RESIDING AT MADHAVEEYAMATHIYAMBUR, KALIKADAVU, BALLA P.O., KASARAGOD DISTRICT PIN - 671315** **PP-SRI.G.SUDHEER** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **28.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** ## **CRL.MC NO. 8192 OF 2022** **AGAINST THE ORDER/JUDGMENT IN STC NO.599/2019 OF JUDICIAL FIRST CLASS** **MAGISTRATE-I,HOSDRUG** ## **PETITIONER/ACCUSED:** **BIJU KRISHNA SHYAMALA AGED 42 YEARS, S/O. V.KRISHNAN, RESIDING AT BIJU NIVAS, MELANGOT P.O., BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT PIN - 671315 BY ADVS. VIMAL VIJAY K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH VANDANA MENON** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 VIJU PUTHIYAVALAPPU AGED 43 YEARS, S/O. PUTHIYAVALAPPU KUNHIKANNAN, RESIDING AT MADHAVEEYAMATHIYAMBUR, KALIKADAVU, BALLA P.O., KASARAGOD DISTRICT PIN - 671315** ## **SR.PP-SRI.RENJIT GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C Nos. 8195 & 8192 of 2022 3 **A. BADHARUDEEN, J. ---------------------------------------Crl.M.C.Nos. 8195 & 8192 of 2022 ---------------------------------------Dated this the 28th day of November, 2022** ## **O R D E R** These are petitions filed under Section 482 of the Code of Criminal Procedure. The petitioner in these petitions is the accused in STC No. 358/2019 and STC No.599/2019 pending before the Judicial First Class Magistrate Court-I, Hosdurg. 2. Heard the learned counsel for the petitioner on admission. 3. It is submitted by the learned counsel for the petitioner that, the original transaction led to issuance of cheques as stated in the complaint is during May, 2010 and thereafter it was alleged that cheques were issued on the basis of an agreement executed in the year 2016. Those cheques along with other cheques, which were not covered by the agreement where used to launch complaints by the Crl.M.C Nos. 8195 & 8192 of 2022 4 complainant. Therefore, the complaints are baseless warranting quashment by invoking power under Section 482 of the Cr.P.C. 4. On a perusal of the respective complaints, it could be noticed that, the complainant raised contention that, the transaction originally started in the first week of May, 2010 and subsequently there was an agreement. According to the complainant, in view of the transaction of the year May, 2010 and subsequent execution of agreement, the present cheques were issued and the same got dishonored when presented for collection. 5. If the accused has any grievance in the matter of passage of consideration as alleged or the execution of the cheques as contented, the same can be addressed by the trial court during evidence alone and therefore, the said grounds that has been argued by the learned counsel for the petitioner, now before this Court cannot be the foundation for quashing the complaints without being adjudicated. 6. In the decision reported in _**[1976 (3) SCC 736], Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi**_ , the Crl.M.C Nos. 8195 & 8192 of 2022 5 Apex Court enumerated the list of cases where an order of the Magistrate issuing process against the accused can be quashed or set aside. The same are as under: “(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is a sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like.” 7. That apart, in the decisions reported in [1988(1) SCC 692], _**Madhavrao Jiwajirao Scindia v. Sambhajirao**_ Crl.M.C Nos. 8195 & 8192 of 2022 6 _**Chandrojirao Angre**_ ; [1992 Supp (1) SCC 335], _**State of Haryana v. Bhajan Lal**_ ; [1995 (6) SCC 194], _**Rupan Deol Bajaj v. Kanwar Pal Singh Gill**_ ; [1996 (5) SCC 591], _**Central Bureau of Investigation v. Duncans Agro Industries Ltd.**_ ; [1996 (8) SCC 164], _**State of Bihar v. Rajendra Agrawalla**_ ; [1999 (3) SCC 259], _**Rajesh Bajaj v. State NCT of Delhi**_ ; [2000 (3) SCC 269], _**Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd.**_ ; [2000 (4) SCC 168], _**Hridaya Ranjan Prasad Verma v. State of Bihar**_ ; [ 2001(8) SCC 645], _**M.Krishnan v. Vijay Singh**_ ; [2005(1) SCC 122], _**Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque**_ , the Apex Court summarised the principles while quashing a complaint. The principles are as under: “(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a Crl.M.C Nos. 8195 & 8192 of 2022 7 meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a Crl.M.C Nos. 8195 & 8192 of 2022 8 civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. 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. The test is whether the allegations in the complaint disclose a criminal offence or not.” In these matters, none of the above grounds established warranting quashment of the complaints as sought for. Therefore, these petitions are found to be meritless and are accordingly dismissed with liberty to the petitioner to raise his contentions before the trial court on evidence, during trial. **Sd/-** ## **A. BADHARUDEEN JUDGE** SK Crl.M.C Nos. 8195 & 8192 of 2022 9 ## **APPENDIX OF CRL.MC 8195/2022** **PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF THE COMPLAINT DATED 24.06.2019 FILED UNDER SEC. 190(1) OF CRIMINAL PROCEDURE CODE, 1973 ON THE FILE OF JUDICIAL FIRST-CLASS MAGISTRATE-I, HOSDURG ANNEXURE B TRUE COPY OF THE UNREGISTERED AGREEMENT DATED 29.06.2016 IN FAVOUR OF THE 2ND RESPONDENT** ## **RESPONDENTS' ANNEXURES : NIL** Crl.M.C Nos. 8195 & 8192 of 2022 10 ## **APPENDIX OF CRL.MC 8192/2022** **PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF THE COMPLAINT DATED 21.10.2019 FILED UNDER SEC. 190(1) OF CRIMINAL PROCEDURE CODE, 1973 ON THE FILE OF JUDICIAL FIRST-CLASS MAGISTRATE-I, HOSDURG ANNEXURE B TRUE COPY OF THE UNREGISTERED AGREEMENT DATED 29.06.2016 IN FAVOUR OF THE 2ND RESPONDENT** **RESPONDENTS' ANNEXURES : NIL**