Sayed Haji v. State of Kerala and R. Padamchand Bagmar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 17TH DAY OF MARCH 2014/26TH PHALGUNA, 1935** ## **Crl.MC.No. 5678 of 2013 ()** **--------------------------CC. NO.591/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE. .......** **PETITIONER(S):** **--------------------------** **SAYED HAJI, AGED 53 YEARS, S/O. HYDERAN KUTTY, VALLALPARAMBAN HOUSE, KODANGOD POST, KONDOTTY VIA., MALAPPURAM DISTRICT.** **BY ADV. SRI.JACOB CHACKO.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **2. R. PADAMCHAND BAGMAR,** **S/O. RICKHABRAJ BAGMAR, PROPREITOR OF PADAMCHAND BAGMAR, NO.30, CHANDRAPPAMUDALI STREET, SOWCARPET, CHENNAI.** **R1 BY PUBLIC PROSECUTOR SMT.S. HYMA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 5678 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANX.A1. A TRUE COPY OF THE NOTICE DATED 22-09-2011 ISSUED BY THE 2ND RESPONDENT/COMPLAINANT. ANX.A2. A TRUE COPY OF THE LAWYER NOTICE DATED 07-02-2012 ISSUED BY THE 2ND RESPONDENT/COMPLAINANT ANX.A3. A TRUE COPY OF THE REPLY LAWYER NOTICE DATED 13-02-2012 ISSUED BY THE PETITIONER. ANX.A4. A TRUE COPY OF THE CERTIFIED COPY OF THE COMPLAINT C.C. NO. 519/2012 OF THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- III, KOZHIKODE DATED 24-03-2012 FILED BY THE 2ND RESPONDENT/COMPLAINANT.** ## **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.5678 of 2013 .................................................. Dated this the 17[th] day of March, 2014. ## **O R D E R** This is an application filed the accused in C.C.No.591/2012 on the file of the Judicial First Class Magistrate Court-III, Kozhikode to quash the proceedings under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the above case was registered on the basis of a private complaint filed by the second accused against the petitioner alleging an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The case of the second respondent in the complaint was that the petitioner stood as guarantor for the hire purchase loan in respect of a vehicle and the petitioner had given a cheque undertaking to pay the liability of the principal borrower and the cheque was dishonoured for the reason fund insufficient in the account and a notice was issued and since the amount was not paid, according to the complainant, the petitioner had committed the offence under Section 138 of the Act and so he filed the complaint. According Crl.M.C.No.5678 of 2013 2 to the petitioner, he was only a guarantor and there was no consideration for the cheque alleged to have been issued by him and as such the Magistrate should not have taken cognizance of the complaint itself as against the petitioner and so the petitioner has no other remedy except to approach this Court seeking the following relief: For these reasons and other reasons that may be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may be pleased to call for the records leading to Annexure A4 and quash the same. 3. On going through the allegations in the petition, this Court felt that this petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the learned Public Prosecutor dispensing with notice to the second respondent. 4. The counsel for the petitioner submitted that since he is only a guarantor of a hire purchase agreement for granting loan to the principal debtor and the vehicle was repossessed by the borrower, there is no liability in existence between the petitioner and the second respondent and the second respondent is not entitled to file complaint on the basis of a Crl.M.C.No.5678 of 2013 3 cheque given by him. He had relied on the decision reported in **Sudha Beevi v. State of Kerala** (2004 (2) KLT 746) in support of his case. 5. He had produced Annexure A4 complaint which was field by the second respondent against the petitioner. In para 3 of the complaint, it was specifically mentioned that when the principal borrower committed default, a notice has been issued to the petitioner and on receipt of the notice, he came to the office and issued the disputed cheque and when it was presented, it was dishonoured and in spite of sending Annexure A1 notice, he did not pay the amount. The petitioner produced Annexure A3 reply notice in which it was only mentioned that a blank cheque was obtained which has been misused. In the decision reported in **Sudha Beevi** (cited supra) it was only held that the hirer of a motor vehicle cannot be prosecuted under Section 138 of the Act after the vehicle was repossessed by the owner and the hire purchase agreement has been terminated. That was a case where the hirer of a vehicle had a case that he had given some post dated cheques for the payment of instalments and after repossessing the vehicle, one of such cheques was presented by the financier and that 4 Crl.M.C.No.5678 of 2013 was considered by this Court and found that once the vehicle has been repossessed, the hire purchase agreement has been terminated and thereafter the cheque given during the existence of hire purchase agreement cannot be used and on that basis, complaint under section 138 of the Act is not maintainable. But that was not a case here. There is nothing on record at present to show as to whether the vehicle has been repossessed or not. Further, even as per the allegations in the complaint what is mentioned is that on receipt of a notice issued by the complainant, the petitioner came and issued the disputed cheque undertaking the liability of the borrower and that cheque was dishonoured and in spite of the notice issued, the amount was not paid by the petitioner and so he had committed the offence punishable under Section 138 of the Act. The question whether blank cheque was given by the petitioner was misused and the complaint was filed or whether it was issued in discharge of liability of the borrower undertaking to pay the amount as a guarantor by the petitioner etc are matters to be considered on the basis of evidence. Further, if the petitioner had issued the cheque undertaking the liability of the borrower, then if the cheque is dishonoured and the petitioner has not Crl.M.C.No.5678 of 2013 5 paid the amount, then the offence under Section 138 of the Act will be attracted against the petitioner. Since these matters are to be considered on the basis of evidence, it is not a fit case for this Court to invoke the power under Section 482 of the Code of Criminal Procedure at this stage to quash the proceedings as requested for in the petition. So it is not a fit case to invoke the power under Section 482 of the Code of Criminal Procedure to quash the proceeding at this stage and the petition is liable to be dismissed. In the result, this petition is dismissed. **==> picture [27 x 12] intentionally omitted <==** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.5678 of 2013 6