M/S Jeevan Telecasting Corporation Ltd. v. State of Kerala and Asianet Satellite Communications Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA,** **1944** **CRL.MC NO. 8039 OF 2022** **CC 1037/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -XII,** ## **THIRUVANANTHAPURAM** **PETITIONERS/ACCUSED NOS.1 AND 3:** - **1 M/S JEEVAN TELECASTING CORPORATION LTD THROUGH ITS AUTHORISED REPRESENTATIVE MRS. SHEEJA SUNNY (ASSISTANT MANAGER, FINANCE AND ACCOUNTS) RASHTRADEEPIKA BUILDING, PALARIVATTOM KOCHI, ERNAKULAM, PIN - 682025** - **2 SHEEJA SUNNY, AGED 47 YEARS W/O SUNNY ASSISTANT MANAGER, FINANCE AND ACCOUNTS M/S JEEVAN TELECASTING CORPORATION LTD. RASHTRADEEPIKA BUILDING, PALARIVATTOM, KOCHI, ERNAKULAM , PIN - 682025** **BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI SURABHI SANTHOSH PREETHA S CHANDRAN ABHIJITH SREEKUMAR** ## **RESPONDENTS/STATE AND COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGHCOURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 ASIANET SATELLITE COMMUNICATION LTD., THROUGH ITS AUTHORISED REPRESENTATIVE 2A, 2ND FLOOR, LEELA INFOPARK TECHNOPARK, KAZHAKKOOTTAM THIRUVANANTHAPURAM, PIN - 695581** Crl.M.C.No.8039 of 2022 ..2.. **BY ADVS. SAJI VARGHESE T.G MARIAM MATHAI(M-92) SRI. G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.8039 of 2022 ..3.. **A.BADHARUDEEN, J. -------------------------------------------------------Crl.M.C.No.8039 of 2022 -------------------------------------------------------Dated this the 11[th] day of January, 2023** ## **O R D E R** This petition has been filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A2 complaint in C.C.No.1037 of 2016 on the file of the Judicial First Class Magistrate Court-XII, Thiruvananthapuram. The petitioners are accused Nos.1 and 3 in the above case. 2. The specific contentions raised by the petitioners to quash the complaint are as under: A. It is submitted that the 2[nd] Petitioner herein is only an employee and authorized signatory of the 1[st] Crl.M.C.No.8039 of 2022 ..4.. Petitioner company and does not have any control over the day to day affairs of the company. B. It is submitted that even if it is assumed that there exists a legally enforceable debt, against which a cheque was issued, and the same was dishonoured, the loss suffered by the 2[nd] Respondent on account of the same has been made good by subsequent payments as reflected in the Annexure A-3 chart. The liability of the accused persons as far as the cheque no.197088 dated 30.10.2015 for an amount of Rs.3,42,000/- ( Rupees Three lakh Forty Two Thousand only) drawn on the State Bank of Travancore, Kaloor, Ernakulam Branch, as also other cheques (nos.197086 to 197095) were discharged by payment of an amount of Rs.35,00,000/-(Rupees Thirty Five Lakhs only) through RTGS mode on 30.08.2016. Therefore, the substratum of the respondent's case does not exist as on today. C. It is submitted that as the substrate of the 2[nd] Respondent's case does not exist any longer, continuation of the prosecution against the Petitioners would be nothing but an abuse of the process of the Court. It is submitted that in the present circumstances, quashing of the proceedings in its entirety would only serve the ends of justice. D. It is curious to note that the cheque itself is dated 30.10.2015, but it is alleged that the said cheque Crl.M.C.No.8039 of 2022 ..5.. returned dishonoured a day before, i.e., on 29.10.2015. This in itself shown the falsity of the case of the 2[nd] Respondent at a prima facie level. 3. No counter statement has been filed by the second respondent. 4. In the above circumstances, I have perused the complaint. In the complaint, the specific case is that the first accused had business dealings with the company and the second accused is the authorised signatories in charge and the persons responsible for the conduct of the business of the first accused. The further allegation is that the first accused is represented by the second and third accused and the first accused operates a Satellite TV channel under the name “JEEVAN” for the purpose of execution of the channel JEEVAN through the digital cable network of the complaint company in Kerala. In addition to that, both Crl.M.C.No.8039 of 2022 ..6.. parties entered into an agreement for channel carriage and placement on 20.07.2015 and the complainant performed their part of the agreement and the first accused, in turn, have to pay specific amounts to the complainant company, as agreed upon. 5. The further case is that it is towards payment of the amount the second and third accused being authorised signatories of the first accused had signed and issued cheque for Rs.3,42,000/- and the same got dishonoured. 6. Going by the averments in the complaint, the contention raised by the petitioners that the third accused is only an employee of the company could not be appreciated at the pre-trial stage. Therefore, this contention cannot be found in favour of the petitioners to quash the complaint. Similarly, the learned counsel Crl.M.C.No.8039 of 2022 ..7.. for the second respondent specifically denied the allegation that the liability of the accused persons insofar as the cheque in question was paid. 7. It is true that bank account showing remittance of some amounts in the account of the complainant could be seen from bank accounts. But it could not be held from the bank statements that the payment was towards the discharge of the cheque amount specifically without examining the Bank Manager and adducing evidence in this regard. 8. It is submitted by the learned counsel for the second respondent that payments were made as per an agreement and the said payments did not cover the liability covered by the cheque in question. If so, the contentions raised by the petitioners should have to be considered by the trial court after adducing evidence Crl.M.C.No.8039 of 2022 ..8.. and therefore, the present complaint could not be quashed for the said reasons. 9. 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_ Crl.M.C.No.8039 of 2022 ..9.. _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.”_ 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** Crl.M.C.No.8039 of 2022 ..10.. **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 meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the_ Crl.M.C.No.8039 of 2022 ..11.. _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_ Crl.M.C.No.8039 of 2022 ..12.. _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 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_ Crl.M.C.No.8039 of 2022 ..13.. _criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not._ 10. 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. For the above reasons, the prayer to quash the complaint found to be meritless and accordingly, this petition is dismissed. Sd/- **A.BADHARUDEEN, JUDGE** rkj Crl.M.C.No.8039 of 2022 ..14.. ## **APPENDIX OF CRL.MC 8039/2022** ## **PETITIONER ANNEXURES** ## **ANNEXURE A1** **A TRUE COPY OF THE CHEQUE NO. 197088 DATED 30.10.2015 FOR AN AMOUNT OF RS 3,42,000/- (RUPEES THREE LAKHS FORTY TWO THOUSAND ONLY) DRAWN ON THE STATE BANK OF TRAVANCORE, KALOOR, ERNAKULAM BRANCH ALONGWITH THE RETURN SLIP DATED 29.10.2015** ## **ANNEXURE A2** **A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT IN C.C. NO. 1037/2016 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT -XII, THIRUVANATHAPURAM** ## **ANNEXURE A3** **A TRUE COPY OF THE CHART SHOWING THE DETAILS OF THE CHEQUES ISSUED AND THE PAYMENTS MADE IN LIEU OF THE SAME BY THE 1ST PETITIONER**