S. Somararaj v. Self Employers Service Society and The State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 ``` ``` CRL.MC NO. 9606 OF 2022 ``` ``` ST.NO.680/2022 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- ``` ## **`III,KOTTAYAM`** ## **`PETITIONER/ACCUSED:`** ``` S.SOMARAJ AGED 52 YEARS S/O. LATE RAMA KRISHNAN, AYYANKOIKKAL HOUSE, PUTHUPPALLY VILLAGE & POST, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686011 BY ADVS. D.CHANDRASENAN C.K.GOVINDAN ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1SELF EMPLOYERS SERVICE SOCIETY REG.NO. K.705/97 NEW MARKET ROAD, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, REPRESENTED BY ITS AUTHORISED MEMBER, MR.M.V.JOSEKUTTY, AGED 58, S/O. VARKEY, METTAYIL HOUSE, PUTHUPPALLY DESOM, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686011 2THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` R2 BY PUBLIC PROSECUTOR SMT.C.SEENA ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 9606 OF 2022 ``` ``` 2 ``` ## ORDER This is a petition, filed by the complainant to quash complaint in S.T.No.680/2022, pending before the Judicial First Class Magistrate Court – III, Kottayam and all further proceedings pursuant thereto. 2. Heard the learned counsel for the petitioner on admission. 3. Though the learned counsel for the petitioner was asked to justify quashment, by raising grounds on which, quashment is permissible, the learned counsel miserably failed to point out any valid grounds for quashing the complaint, which has been instituted legally. According to him, civil case in relation to same matter has been settled and decree has been passed. In view of the said settlement, Execution Petition also has been pending, but no amount paid so far. The learned counsel for the petitioner placed the decision reported in Basheer v. Wheels Auto Finance [2017 (2) KLT 911] , in support of the contention that, if the amount covered by the cheque exceeds the legally enforceable debt or other liability, the offence under Section 138 of the Negotiable Instruments Act would not attract. In this case, the case is at the pre-trial stage and those matters are, in fact, matters of evidence. Therefore, the decision, which has been ``` CRL.MC NO. 9606 OF 2022 3 ``` rendered, while considering a matter after conviction, cannot be the foundation to hold so. Further, if at all cheque was issued as part of settlement during pendency of civil case, it cannot be said that the cheque issued even for a higher amount as agreed between the parties, is not legally enforceable debt. 4. Similarly, another decision of the Apex Court reported in Lalit Kumar Sharma v. State of U.P. [2008 (2) KLT 728 (SC)] has been placed to contend that, when compromise was entered into and fresh cheque was issued by one Director and the same was dishonoured, second complaint based on second cheque was not maintainable as it was issued in pursuance of a settlement and does not create any legally enforceable liability. 5. In the present case, cheque was issued during pendency of the suit, after admitting the plaint claim, with an undertaking thereby keeping the liberty of the complainant to launch prosecution, on its dishonour. The said contention could be gathered from paragraph Nos. 2 and 3 of the complaint. The relevant portion of paragraph Nos.2 and 3 of the complaint are as under: (2) That the complainant herein was the plaintiff,one M.K.Kesavan was the 1[ st ] defendant, the accused was the 2[ nd] defendant, his wife Mrs Sini P.S was the 3[ rd] defendant and his mother late P.K Sumathy was the 4[ th ] defendant in OS No307/20 on the file of the Munsiff court Kottayam. The above suit was in respect of a loan availed by the above 1 defendant from the complainant and defendants 1 to 3 ie the accused, his wife and his mother were the sureties in the said loan ``` CRL.MC NO. 9606 OF 2022 ``` ``` 4 ``` transaction. So also he accused was the power of attorney holder of his mother who died pending suit on 10-3-21 and no legal heirs were impleaded since the accused was her sole legal heir. (3). In the above suit the accused & his wife & (2[nd] & 3[ rd] defendants) filed a joint written statement admitting the plaint and before filing written statement the 4[th] defendant mother died. So also the 1[ st] defendant did not appear in the above case. In the said written statement the accused and wife stated that they are ready to pay the plaint amount with interest within a short time. It is further stated in the said written statement that the accused and wife are ready to suffer a compromise decree in the above case for the plaint amount with claimed rate of interest and cost. In furtherance of the above mentioned facts, during the pendency of the suit the accused issued a cheque dated 18-10-21 for Rs.416000( Rupees Four lakhs and Sixteen Thousand only) vide No.01040495' drawn on his account maintained in South Indian Bank Puthppally branch to the complainant in discharge of his individual liability in the said suit and also in discharge of the liability of the 1[st] defendant in the said suit and now the said transaction merged in to a compromise decree. The actual amount due to the complainant (plaint amount with 20% interest) as on 18-10-21 is Rs.416744/ and the same was rounded off by the accused as Rs.416000 and issued the above mentioned cheque to the complainant. It is stated in the said written statement that if the cheque is dishonoured on presentation the complainant can file a complaint U/S 138 of the N.I Act against the accused and if any amount is realized by way of 138 proceedings the same can be appropriated in the proposed decree to be suffered by the defendants. No doubt, these are all matters of evidence and the reasons to quash the complaint have been well settled. 6. In the decisions reported in [1988(1) SCC 692], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre; [1992 Supp (1) SCC 335], State of ``` CRL.MC NO. 9606 OF 2022 5 ``` 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 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 ``` CRL.MC NO. 9606 OF 2022 ``` ``` 6 ``` 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 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. In view of the above settled legal positions, the grounds pointed out by the ``` CRL.MC NO. 9606 OF 2022 7 ``` learned counsel for the petitioner to quash the complaint at the pre-trial stage, found to be not convincing. Therefore, this petition lacks merits and hence, this petition is liable to be dismissed. Accordingly, this Crl.M.C. is dismissed. Sd/A. BADHARUDEEN JUDGE Bb ``` CRL.MC NO. 9606 OF 2022 8 ``` ## **`APPENDIX OF CRL.MC 9606/2022`** |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE A1`|`TRUE COPY OF THE COMPLAINT FILED BY THE`| ||`RESPONDENT SOCIETY`| |`ANNEXURE A2`|`TRUE COPY OF THE SUMMONS RECEIVED BY THE`| ||`PETITIONER`| |`ANNEXURE A3`|`TRUE COPY OF THE PLAINT IN OS NO. 307 OF`| ||`2020`| |`ANNEXURE A4`|`TRUE COPY OF THE DECREE PASSED IN OS NO. 307`| ||`OF 2020 ON THE FILE OF MUNSIFF COURT,`| ||`KOTTAYAM WITH THE MEMORANDUM OF AGREEMENT`| ||`ENTERED IN THE MEDIATION`| |`ANNEXURE A5`|`TRUE COPY OF THE EXECUTION PETITION NO. 56`| ||`OF 2022 IN OS NO. 307 OF 2020`| |`RESPONDENTS’`<br>`ANNEXURES`|<br>`NIL`| //TRUE COPY// PA TO JUDGE