NARENDRAN and PRAHLAD VADAKKEPAT v RAJENDRAN NAIR and STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ## **`CRL.MC NO. 88 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN ST 57/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPPALAM ``` ## **`PETITIONERS/ACCUSED 1 & 2:`** ``` 1NARENDRAN AGED 58 YEARS S/O.LATE NARAYANA GUPTHAN MANNAZHI, SECRETARY, M/S.ARYANET TRUST, KADAMBAZHIPURAM, PALAKKAD DISTRICT, PIN - 678 633. 2PRAHLAD VADAKKEPAT AGED 59 YEARS S/O.LATE BHASKARA GUPTAN, CHAIRMAN, M/S.ARAYANET TRUST, KADAMBAZHIPURAM, PALAKKAD DISTRICT, PIN - 678 633. BY ADVS. RAJESH SIVARAMANKUTTY K.VIJINA ARUL MURALIDHARAN ``` ## **`RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1RAJENDRAN NAIR AGED 66 YEARS S/O.NARAYANAN NAIR, RAJENDRA VILAS, PAKARAVOOR DESOM, THIRUVAZHIYODE AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679 514. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 88 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 29[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 entire proceedings in S.T.No.57/2019 on the files of the Judicial First Class Magistrate Court-II, Ottapalam based on Annexure A complaint. The petitioners herein are accused Nos.1 and 2 in the above case. 2. On notice, the other side did not appear. 3. Heard the learned counsel for the petitioners. 4. It is argued by the learned counsel for the petitioners that prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) would not sustain as against ‘Trust’, since ‘Trust’ is not a ‘body ``` CRL.MC NO. 88 OF 2022 ``` ## **`3`** corporate’ or ‘an association of individuals’, as provided in the explanation to Section 141 of the NI Act. In order to substantiate this contention, the decision of this Court reported in [2019 Supreme (Ker) 419 : 2019(3) KHC 1 : 2019(1) KLD 804] _**Shibu K.P. and Others v. State of Kerala and Another**_ has been pointed out. In the said decision, this Court held so. But in the same decision, this Court while quashing the complaint against the petitioners in the said case, held that the petitioners did not sign the cheque and therefore, no successful prosecution against the petitioners could be possible. 5. Coming back to this case, the specific allegation in the complaint is that accused Nos.1 and 2 had signed and executed the cheque for repayment of Rs.5,00,000/- liable to be paid to the complainant, for and on behalf of the Trust and they are the Secretary and Chairman of Aryanet Trust. On perusal of the cheques also, two persons signed ``` CRL.MC NO. 88 OF 2022 ``` ``` 4 ``` in the cheque. 6. It is argued by the learned counsel for the petitioners argued further that the petitioners herein are not the Chairman or Secretary of the Trust and therefore, they could not be penalised. 7. In this matter, _prima facie_ , the averments in the complaint would go to show that the cheque was signed and issued by the petitioners herein as Secretary and Chairman of Aryanet Trust and therefore, their liability, if any, is a matter of evidence to be adduced during the trial and the mere allegation that they are not Chairman or Secretary of the Trust cannot be a basis to quash a criminal complaint without being tried. 8. 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 ``` CRL.MC NO. 88 OF 2022 ``` ``` 5 ``` ## 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 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], ``` CRL.MC NO. 88 OF 2022 ``` ``` 6 ``` _**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_ ``` CRL.MC NO. 88 OF 2022 ``` ``` 7 ``` _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 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_ ``` CRL.MC NO. 88 OF 2022 ``` ``` 8 ``` _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 criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not._ ``` CRL.MC NO. 88 OF 2022 ``` ``` 9 ``` 9. 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. Therefore, this is not a fit case to quash the complaint. In view of the matter, the petition fails and is accordingly dismissed, with liberty to the petitioners to raise their contentions during trial. **Sd/A. BADHARUDEEN** **JUDGE** nkr ``` CRL.MC NO. 88 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 88/2022`** |**`PETITIONER`**|**`ANNEXURES`**| |---|---| |**`Annexure A`**|**`CERTIFIED COPY OF THE COMPLAINT`**| ||**`PENDING ON THE FILES OF JUDICIAL FIRST`**| ||**`CLASS MAGISTRATE-II, OTTAPALAM AS`**| ||**`S.T.NO.57/2019.`**| |**`Annexure B`**|**`CERTIFIED COPY OF THE CHEQUE NO.860593`**| ||**`DATED 28/4/2017 DRAWN ON DHANLAXMI`**| ||**`BANK, KONGAD BRANCH ISSUED IN FAVOUR`**| ||**`OF COMPLAINANT FOR A AMOUNT OF`**| ||**`RS.5,00,000/- BY AUTHORIZED SIGNATORY`**| ||**`FOR ARYANET TRUST.`**| |**`Annexure C`**|**`CERTIFIED COPY OF MEMO DATED 18/7/2017`**| ||**`ISSUED BY THE STATE BANK INDIA,`**| ||**`SREEKRISHNAPURAM BRANCH.`**| |**`Annexure D`**|**`CERTIFIED COPY OF THE LAWYER NOTICE`**| ||**`ISSUED ON BEHALF OF THE 1ST RESPONDENT`**| ||**`TO THE PETITIONERS DATED 7/8/2017.`**| |**`Annexure E`**|**`CERTIFIED COPY OF THE PURPORT OF`**| ||**`PROCEEDINGS IN DIARY EXTRACTS IN`**| ||**`S.T.NO.1589/2017 DATED 31/8/2017 ON`**| ||**`THE FILES OF JUDICIAL FIRST CLASS`**| ||**`MAGISTRATE COURT-I, OTTAPALAM.`**|