M/S Jeevan Telecasting Corporation Ltd. v. State of Kerala & 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. 8482 OF 2022** **CC 566/2017 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.8482 of 2022 ..2.. **BY ADVS. SAJI VARGHESE T.G MARIAM MATHAI(M-92) SRI. RENJIT GEORGE, SR.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.8482 of 2022 ..3.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.M.C.No.8482 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.566 of 2017 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] Petitioner company and does not have any control over the day to day affairs of the company. Crl.M.C.No.8482 of 2022 ..4.. 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.197137 dated 28.10.2016 for an amount of Rs.3,63,375/- (Rupees Three lakh Sixty Three Thousand Three Hundred and Seventy Five only) drawn on the State Bank of Travancore, Kaloor, Ernakulam Branch, as also other cheques (nos.197133 to 197145 and partpayment of cheque no.197146) were discharged by payment of an amount of Rs.45,00,000/-(Rupees Forty Five Lakhs only) on 28.03.2018, and Rs.5,00,000/(Rupees Five Lakhs only) on 29.03.2018 through RTGS mode. 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. ## 3. The second respondent filed counter ## statement and it has been contended as under: Crl.M.C.No.8482 of 2022 ..5.. “5. The contents of Annexure A3 chart stated to be showing the details of cheques issued and payments made in lieu of the same by the first Petitioner is disputed and denied by this Respondent. None of the said payments which were made long after the dishonour of the cheques and when the carriage agreement was still in existence, were made or adjusted in respect of the cheques involved in the S.138 cases filed by this respondent except to the extent stated above and those amounts were adjusted towards dues of the period when the payments were made, part of the past dues and interest. A table showing the details of dues from 12.03.2014 and the part payments received against the outstanding dues of carriage fees and interest, which is already adjusted against part dues(not against the cheques in the S.138 cases which are still pending) and the balance due after receipt of the part payment is produced herewith and marked as **Annexure R2(a)** . The payments made as shown in Annexure-R2(a) are not in respect of the cheques involved in the S.138 cases and the part payments were adjusted towards part dues which are not covered under the cheques involved in 138 cases. However as stated above 13 cases were withdrawn after mutual discussions between the parties and no cases were filed against cheques in serial Nos.1 to 12 in Annexure A3. A table showing the details of cases withdrawn after adjusting part of the payments made by the petitioners to the cheques, after mutual Crl.M.C.No.8482 of 2022 ..6.. discussions between the parties, is produced herewith and marked as **Annexure-R2(b)** . There are still 74 cases which are filed under 138 of the Negotiable Instruments Act which are pending and the amount involved in those cases are Rs.5.73 crores, which is still due from the petitioners to this respondent. 6. The allegation that legally enforceable debt no longer exists is baseless, incorrect and is denied by this respondent. The grounds raised by the petitioners are untenable. The allegation that the 2[nd] Petitioner does not have any control over the day-to-day affairs of the Company is disputed and denied by this Respondent. The allegation in ground B that the loss suffered by the 2[nd] Respondent on account of the dishonour of the cheques has been made good by the subsequent payments as reflected in Annexure A3 chart is baseless, incorrect and is denied by this Respondent. The further allegation that the liability of the accused persons as far as cheque No.197137 dated 28.10.2016 for an amount of Rs.3,63,375/- drawn on the State Bank of Travancore, Kaloor, Ernakulam branch as also other cheques (numbers 197134 to 197145) were discharged by payment of an amount of Rs.45,00,000/- on 28.3.2018 and Rs.5,00,000/- on 29.3.2018 through RTGS Mode and therefore the substratum of the Respondent's case does not exist as on today is baseless, incorrect and is denied by this Respondent. The allegation in ground C that the substratum of 2[nd] Respondent's case does not exist any Crl.M.C.No.8482 of 2022 ..7.. longer, continuation of the prosecution against the Petitioner would be nothing but an abuse of the process of the Court is absolutely baseless and incorrect. The petitioners are not entitled to any relief in the above Crl.MC. The above petition is liable to be dismissed with costs to this Respondent. 4. In view of the rival contentions, 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 parties entered into an agreement for channel carriage and placement on 20.07.2015 and the complainant performed their part of Crl.M.C.No.8482 of 2022 ..8.. 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.3,63,375/- 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, as per the specific contention raised in the objection, the second respondent specifically denied the allegation that the liability of the accused persons insofar as the cheque in question was paid. Crl.M.C.No.8482 of 2022 ..9.. 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 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 Crl.M.C.No.8482 of 2022 ..10.. 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.”_ That apart, in the decisions reported in [1988(1) SCC Crl.M.C.No.8482 of 2022 ..11.. 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: _(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_ Crl.M.C.No.8482 of 2022 ..12.. _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 improbable._ _(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power_ Crl.M.C.No.8482 of 2022 ..13.. _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 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_ Crl.M.C.No.8482 of 2022 ..14.. _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._ 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.8482 of 2022 ..15.. ## **APPENDIX OF CRL.MC 8482/2022** ## **PETITIONER ANNEXURES** - **ANNEXURE A1 A TRUE COPY OF THE CHEQUE NO. 197137 DATED 28.10.2016 FOR AN AMOUNT OF RS 3,63,375/- (RUPEES THREE LAKHS SIXTY THREE THOUSAND THREE HUNDRED SEVENTY FIVE ONLY) DRAWN ON THE STATE BANK OF TRAVANCORE, KALOOR, ERNAKULAM BRANCH ALONGWITH THE RETURN SLIP DATED 28.10.2016** - **ANNEXURE A2 A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT IN C.C. NO. 566/2017 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** - **ANNEXURE A4 A TRUE COPY OF THE ORDER OF THIS COURT IN CRL.M.C. NO. 7783/2022 DATED 02.11.2022** - **RESPONDENT ANNEXURES** - **ANNEXURE R2(A) DETAILS OF DUES FROM 12.03.2014 AND THE PART PAYMENTS RECEIVED** - **ANNEXURE R2(B) DETAILS OF CASES WITHDRAWN BASED ON DISCUSSIONS**