S. Ajith Kumar v. State of Kerala & Vishnu Namboothiri

Crl.M.C.No.792/2020 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943_ ## _CRL.MC NO. 792 OF 2020_ _AGAINST THE ORDER/JUDGMENT IN CC 1767/2010 OF JUDICIAL_ _MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA_ ## _PETITIONER/ACCUSED:_ _S.AJITH KUMAR, AGED 48 YEARS, S/O.SUGATHAN, PUTHANVILA HOUSE, KATTADI P.O., KOTTARAKARA, PIN-691 537. BY ADVS. S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S._ ## _RESPONDENT/DE FACTO COMPLAINANT:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. 2 VISHNU NAMBOOTHIRI, AGED 49 YEARS, S/O.ESWARA NAMBOOTHIRI, UZHITHARAPPALLY, PRANAVAM THEVANNURE MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK, KOTTARAKKARA, PIN-691 533. BY ADVS. SRI.K.T.THOMAS SRI.MATHEW B. KURIAN_ _ADV. RANJIT GEORGE – SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.792/2020 2 ## **O R D E R** The petitioner is the sole accused in C.C.No.1767 of 2010 on the files of the Judicial First Class Magistrate Court, Kottarakkara. The case mentioned above arises from crime No.16 of 2009 of Kottarakkara Police Station for the offence punishable under Section 420 IPC. 2. The aforesaid crime was registered based on a private complaint submitted by the 2[nd] respondent de facto complainant, which was referred for investigation by the learned Magistrate under Section 156 (3) of Cr. P.C to the Station House Officer, Chadayamangalam Police Station. After completing the investigation, Annexure-D final report has been submitted by the police. This Crl.M.C. is filed challenging Annexure-D final report and further proceedings thereon as C.C.No.1767 of 2010, pending before the Judicial First Class Magistrate Court, Kottarakkara. 3. Heard Sri.S.Sreekumar learned Senior counsel for the petitioner, Sri.K.T.Thomas, learned counsel for the 2[nd] Crl.M.C.No.792/2020 3 respondent and Sri.Sudheer Gopalakrishnan learned Public Prosecutor for the State. 4. The learned Senior counsel specifically contends that the prosecution initiated against the petitioner does not attract any criminal offence as the primary dispute involved is civil in nature. 5. My attention was brought to the contents of the gist of charge in Annexure-D and the civil suit submitted before the Sub Court, Kottarakkara, numbered as O.S.No.320 of 2008 for realization of the amount from the petitioner. It is discernible from the records that an amount of Rs.67 lakhs was allegedly collected by the petitioner from the de facto complainant. Later when the repayment of the same was sought for, a cheque was issued, which was dishonoured upon presentation, on the ground that the drawer stopped the payment. 6. It is pointed out that, subsequently, the 2[nd] respondent de facto complainant received the entire amount of Rs 67 lakhs from the purchaser of the property of the Crl.M.C.No.792/2020 4 petitioner herein, as there was an order of attachment passed by the court, over the property in the suit, to the extent of the amount claimed therein. My attention was also brought to the amendment made to Annexure-B plaint, by which the relief was confined to the interest accrued on the principal amount of Rs.67,00,000/-. 7. In such circumstances, the prayer for quashing the proceedings was pressed by the Senior learned counsel. According to him, the transaction is civil in nature for which no culpability can be attributed. On the other hand, the learned counsel for the 2[nd] respondent would oppose the same. His specific case is that the averments and the materials produced in Annexure-B are sufficient to attract the offence under Section 420 IPC. 8. When I consider the rival contentions of the parties herein, the crucial aspect to be considered is the nature of the allegations raised against the petitioner herein. The gist of the allegation contained in Annexure-D is that the petitioner had collected an amount of Rs.67,00,000/- for the Crl.M.C.No.792/2020 5 business purpose of the petitioner, by way of several transactions. Later, when the repayment of the said amount was sought, a cheque was issued, and the same was dishonoured on the ground of payment stopped by the drawer. From the nature of the said allegation, it can be seen that it has a predominant civil flavour, particularly because there is nothing in the complaint indicating any dishonest intention on the part of the petitioner herein to cheat the de facto complainant, right from the inception. 9. The aforesaid impression is fortified when I examine the specific pleadings contained in Annexure-B plaint submitted in O.S.No.320 of 2008 by the de facto complainant herein. In paragraph No.3 of Annexure-B, the specific averment concerning the transactions is that the same was a borrowal for the petitioner’s business herein. The civil nature of the transaction is very much evident therefrom. Even if the issuance of cheque without sufficient funds in his account and his conduct of issuance of stop memo is highlighted as the ground for the offence, I am of the view, by virtue of the Crl.M.C.No.792/2020 6 special procedure contemplated under Section 138 of the Negotiable Instrument Act for prosecution, the offence under Section 420 IPC would not be attracted. There is yet another reason which supports the aforesaid conclusion. As far as the de facto complainant is concerned, he got the amount of Rs.67,00,000/- back, on the strength of the attachment he obtained in that suit against the petitioner’s properties. It is to be noted that, in Annexure-C document, while assigning properties of the petitioner to a third person, the charge created on the said property by virtue of the attachment in the suit filed by the petitioner was explicitly mentioned and subsequently, the purchaser of the property had discharged the said liability by paying an amount of Rs.67,00,000/- to the de facto complainant. 10. The aforesaid payment and acknowledgment thereto by the de facto complainant is evident from the Annexure-C receipt. In addition to the above, consequent to the receipt of the said amount, an amendment was also affected in Annexure-B plaint by confining the claim sought for Crl.M.C.No.792/2020 7 therein to the interest accrued on the principal amount of Rs.67,00,000/-. Thus, when all the above aspects are considered, the only possible conclusion is that the criminal prosecution against the petitioner is a clear abuse of the process of the court. In **Prof.R.K.Vijayasarathy v. Sudha Seetharam [2019 (16) SCC 739]** , the Honourable Supreme Court has observed that when the dispute involved in the case is predominantly civil in nature, the criminal prosecution can be quashed. It was further observed that while exercising the jurisdiction under Section 482 Cr.P.C., the High Court can examine whether a matter is essentially civil and has been given a colour of a criminal case. In this case, after examining the entire materials available on record, I am convinced that the primary dispute is predominantly civil in nature. In such circumstances, I find that this is a fit case in which powers of this Court under Section 482 Cr. P.C can be invoked. In the result, this Crl. M.C. is allowed. Annexure-D final report in Crime No.16 of 2009 of Kottarakkara Police Station and all further Crl.M.C.No.792/2020 8 proceedings in C.C.No.1767 of 2010 on the file of the Judicial First Class Magistrate Court, Kottarakkara are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/14.3.22 Crl.M.C.No.792/2020 9 ## _APPENDIX OF CRL.MC 792/2020_ _PETITIONER ANNEXURES_ _ANNEXURE A_ _TRUE COPY OF FIR IN CRIME NO.16 OF 2009._ _ANNEXURE B_ _CERTIFIED COPY OF PLAINT IN OS NO.320 OF 2008 OF SUB COURT KATTARAKARA FILED BY THE 2ND RESPONDENT AGAINST THE PETITIONER_ _ANNEXURE C_ _TRUE COPY OF RECEIPT DATED 4.10.2012 ISSUED BY 2ND RESPONDENT IN FAVOUR OF A.M.GOPALAN, MANAGING DIRECTOR SREE GOKULAM CHITS AND FINANCE PVT. LTD._ _ANNEXURE D_ _CERTIFIED COPY OF FINAL REPORT IN C.C.NO.1767 OF 2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKARA._