Moosa v. Punjab National Bank and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 3979 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 481/2019 OF JUDICIAL FIRST CLASS ``` ## **`MAGISTRATE-V, ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` MOOSA AGED 60 YEARS CHAIRMAN, NOORUL ISLAM TRUST, V/54, GROUND FLOOR, ADMINISTRATIVE BLOCK, AL AZHAR CAMPUS, PERUMPILLICHIRA P O, THODUPUZHA, IDUKKI, PIN - 685584 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ``` ## **`RESPONDENTS/COMPLAINANT/STATE:`** ``` 1PUNJAB NATIONAL BANK A PUBLIC SECTOR UNDERTAKING OWNED BY GOVERNMENT OF INDIA HAVING ITS REGISTERED OFFICE AT NO 7, BIKAIJI CAMA PALACE, NEW DELHI-110066, REPRESENTED BY BRANCH MANAGER BRANCH OFFICE AT M G ROAD, RAVIPURAM, ERNAKULAM, PIN - 682015 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADVS. M.N.UMARANI B.SATHEEZ CHANDRAN(K/378/1975) M.G.SUSSILA(K/339/1977) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ## **`25.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** ``` CRL.MC NO. 3979 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 25[th] day of November, 2022 This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for convenience) and the prayer herein is to quash complaint in C.C.No.481/2019 on the files of the Judicial First Class Magistrate Court (N.I.Act Cases), Ernakulam. The petitioner herein is the second accused in the above case. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent, who is the complainant in the above case. 3. It is argued by the learned counsel for the petitioner that going by the averments in the complaint itself, the complainant admitted that the accused availed term loan from the complainant on 16.07.2012 under a ## **`CRL.MC NO. 3979 OF 2022`** ## **`3`** consortium agreement. He would submit further that the consortium agreement provides availing of loan from three banks viz., Punjab National Bank, Central Bank of India and Bank of India. But in the complaint, the said aspects were materially suppressed. Further, he would submit that the details of the consortium also not stated in the demand notice. Therefore, the complaint is bad in law and the same is liable to be quashed. 4. Per contra, it is submitted by the learned counsel for the complainant that the complainant very well averred in the complaint that the accused availed a term loan from the complainant on 16.07.2012 under the consortium agreement and when the accused defaulted repayment of the loan so availed from the complainant, viz, M/s.Punjab National Bank, in discharge of a total sum of Rs.15,11,54,666/- (Rupees fifteen crore elevan lakh fifty four thousand six hundred and sixty six only) outstanding ``` CRL.MC NO. 3979 OF 2022 ``` ``` 4 ``` towards loan arrears, the accused had issued cheque for the said sum. He also pointed out the contention of the complainant in the complaint as to presentation of the said cheque for collection, its dishonour for want of funds, issuance of notice as well as reluctance on the part of accused Nos.1 to 3 despite receipt of notice. 5. In this matter, it is pointed out by the learned counsel for the petitioner further that the affidavit filed in lieu of sworn statement in substitution of an enquiry under Section 202 Cr.P.C. also does not contain the details of the consortium. The learned counsel read out the recitals in the affidavit while pressing for the said contention. However, necessary details as regards to availing of loan, dishonour of cheque etc, could be found in the affidavit also and the last sentence of the affidavit reads as under: _“The averments contained in the complaint may also be treated as part of this affidavit”_ ``` CRL.MC NO. 3979 OF 2022 ``` ## **`5`** Therefore, this contention also could not be countenanced. 6. In the decision reported in [1976 (3) SCC 736], _**Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi**_ , the 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_ ``` CRL.MC NO. 3979 OF 2022 ``` ``` 6 ``` _absence of a complaint by legally competent authority and the like.”_ That apart, in the decisions reported in [1988(1) SCC 692], _**Madhavrao Jiwajirao Scindia v. Sambhajirao 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: ``` CRL.MC NO. 3979 OF 2022 ``` ``` 7 ``` _(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 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_ ``` CRL.MC NO. 3979 OF 2022 ``` ``` 8 ``` _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 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_ ``` CRL.MC NO. 3979 OF 2022 ``` ``` 9 ``` _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._ 7. Thus the law is no more _res integra_ on the point that a complaint can be quashed only when it falls under the category of cases as per the principles set out by the Apex Court, extracted herein above. 8. In this matter, the Punjab National Bank, who alleged to have granted term loan based on a consortium agreement launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I Act' for ``` CRL.MC NO. 3979 OF 2022 ``` ``` 10 ``` convenience) when cheque alleged to be issued by the accused herein in discharge of the liability towards the loan arrears for the said sum got dishonoured. The complaint contains all necessary averments to substantiate a _prima facie_ case, warranting trial. In such a case, the details of the consortium agreement, the availing of loan, consequential issuance of cheque etc. are absolutely matters of evidence, for which, the matter shall go for trial. In such a case, the complaint cannot be quashed before trial and accordingly, the reasons pointed out by the learned counsel for the petitioner to quash the complaint found to be unsustainable. In view of the matter, the petition fails and is accordingly dismissed. Considering the matter is of the year 2019, the learned Magistrate is directed to expedite the trial and finish the same within a period of three months, following ``` 11 ``` ``` CRL.MC NO. 3979 OF 2022 ``` the spirit of the mandate of Section 143(5) of the N.I.Act. **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` CRL.MC NO. 3979 OF 2022 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 3979/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure-ICERTIFIED COPY OF THE COMPLAINT NUMBERED AS CC NO 486/2018 WHICH IS NOW PENDING AS CC NO 481/2019 ON THE FILE OF JUDICIAL MAGISTRATE FIRST CLASS (NI CASES), ERNAKULAM Annexure-IICOPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE NOORUL ISLAM TRUST DATED 03.01.2018 Annexure-IIITHE COPY OF THE AFFIDAVIT SWORN BY 1ST RESPONDENT ```