Shafeern M. v. Das K.N. & The State of Kerala (CRL.MC Nos. 5539 of 2021 and 5530 of 2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` MONDAY,THE22[ND]DAYOFMAY2023/1STJYAISHTA,1945 CRL.MCNO.5539OF2021 ``` ``` FORQUASHINGANX-A1COMPLAINTINCCNO.137OF2020ON THEFILEOFJUDICIALFIRSTCLASSMAGISTRATECOURT-III, PALAKKAD ``` ## **`PETITIONER/ACCUSED:`** ``` 1SAHFEEKN.M, AGED45YEARS S/O.NOORMUHAMMED, RESIDINGATFORSHA, THACHANKODE,MUTTIKULANGARA(P.O), PALAKKAD,KERALAPIN-678594 ``` ``` BYADV ``` ``` R.O.MUHAMEDSHEMEEM NASEEHABEEGUMP.S. ``` ## **`RESPONDENTS/DEFACTO COMPLAINANT:`** ``` 1DASK.N ,AGED43YEARS S/O.LATEKRISHNAKUMAR, RESIDINGAT KRISHNALAYAM,VENNAKKARA,PUDUPPARIYARAM, (P.O),PALAKKAD,KERALA,PIN678731. ``` ``` 2THESTATEOFKERALA, REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM-682031 ``` ``` CRL.MCNO.5539&5530OF2021 ``` **==> picture [9 x 9] intentionally omitted <==** ``` BYADVS. SRIMPPRASHANTHPP S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER SARATHK.P. ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFOR ADMISSIONON22.05.2023,ALONGWITHCrl.MC.5530/2021, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.5539&5530OF2021 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE22[ND]DAYOFMAY2023/1STJYAISHTA,1945 ``` ``` CRL.MCNO.5530OF2021 ``` ``` FORQUASHINGANX-A1COMPLAINTINCCNO.140OF2020ON THEFILEOFJUDICIALFIRSTCLASSMAGISTRATECOURT-III, PALAKKAD ``` ## **`PETITIONER/ACCUSED:`** ``` 1SHAFEERN.M. AGED45YEARS S/O.NOORMUHAMMED, RESIDINGATFORSHA,THACHANKODE, MUTTIKULANGARAP.O., PALAKKAD,KERALA-678594. ``` ``` BYADVS. R.O.MUHAMEDSHEMEEM NASEEHABEEGUMP.S. ``` ## **`RESPONDENTS/DEFACTO COMPLAINANT:`** ``` 1PRADEEPV.K., AGED41YEARS, S/O.LATEKRISHNAKUMAR, RESIDINGATKRISHNALAYAM, VENNAKKARA,PUDUPPARIYARAMP.O., PALAKKAD,KERALA-678731. ``` ``` CRL.MCNO.5539&5530OF2021 ``` ``` 4 ``` ``` 2THESTATEOFKERALA, REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM-682031. ``` ``` BYADVS. SRI.VIPINNARAYANAN, SR.PPS.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFOR ADMISSIONON22.05.2023,ALONGWITHCrl.MC.5539/2021, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.5539&5530OF2021 ``` ``` 5 ``` ## **ORDER** Crl.M.C.No.5530 of 2021 is filed by the sole accused in C.C.No.140 of 2020 on the files of the Judicial Magistrate of the First Class-III, Palakkad, seeking to quash Annexure-A1 complaint filed by Sri. Pradeep V.K., the 1st respondent in the petition, under Section 138 of the Negotiable Instruments Act. 2. Crl.M.C.No. 5539 of 2021 is filed by the same petitioner, who has been arrayed as the accused in C.C.No.137 of 2020 on the files of the Judicial Magistrate of the First Class-III, Palakkad, seeking to quash Annexure-A1 complaint filed by Sri. Das K.N., the 1st respondent in the petition, under Section 138 of the Negotiable Instruments Act. 3. The de facto complainant in both cases are brothers. The specific case of the petitioner is that on 01.11.2019 at about 3 pm, while the petitioner, who is a contractor, was at his worksite in connection with the work relating to Malampuzha Block Panchayat, the de facto complainant in both the cases along with six others abducted the petitioner from his workplace and after assaulting him obtained cheques from his possession which were altered and used for instituting false complaints under the ``` CRL.MCNO.5539&5530OF2021 ``` ``` 6 ``` Negotiable Instruments Act. The petitioner asserts that based on the complaint lodged by the petitioner herein in Crime No.423 of 2019 of the Palakkad Kasba Police Station was registered. It is contended that the above sequence of events would reveal that the cheques were materially altered by the 1st respondent in both cases and therefore, it cannot be said that the cheques were issued in discharge of a legally enforceable debt. It is further contended that the learned Magistrate was not justified in taking cognizance of the offence in view of the fatal flaw in the prosecution case. It is on these assertions that these petitions are filed seeking to quash the respective complaints pending before the learned Magistrate. 4. As the contention advanced by the petitioner to seek quashing of the proceedings is the same in both cases, with the consent of the learned counsel appearing for both sides, both these petitions are taken up and disposed of by a common order. 5. Sri. R.O. Muhammad Shemeem, the learned counsel appearing for the petitioner, referred to Annexure-5 FIR, and it is argued that a proper evaluation of the same would reveal that no transaction of the nature alleged in both the complaints had actually taken place. ``` CRL.MCNO.5539&5530OF2021 ``` ``` 7 ``` 6. Sri. Vinay, the learned counsel appearing for the 1st respondent in both cases, has opposed the submissions. It is further submitted that the mere fact that a crime has been registered by the police based on information furnished by the petitioner is no reason to quash the complaint lodged under the Negotiable Instruments Act. As to whether the transaction had actually taken place, whether the cheque is supported by consideration, and whether there is a legally enforceable debt is to be determined by the jurisdictional Magistrate after taking evidence. Relying on the law laid down in **Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi)** 2022 (2) KLT Online 1037 (SC) and **Rajeev Kourav v. Baisahab and Ors.** [2020 (2) KLJ 463], it is submitted that this Court will not be justified in embarking upon an enquiry as to whether the evidence in question is reliable or not or whether, on a reasonable appreciation of it, the accusation would or would not be sustained. 7. I have considered the submissions advanced and have carefully gone through the records. The records reveal that the cheque alleged to have been issued by the petitioner to the 1st respondent in these cases was dishonored on presentation. The de facto complaint through his lawyer has issued a notice demanding payment. It was thereafter that Annexure-A1 ``` CRL.MCNO.5539&5530OF2021 ``` ``` 8 ``` complaint in both cases were filed before the jurisdictional Magistrate. The specific case of the petitioner is that the cheques were obtained by force. In order to substantiate the same, the petitioner has placed on record Annexure-A5 FIR in Crime No. 423 of 2019 of the Palakkad Kasaba Police Station. As rightly submitted by the learned counsel appearing for the 1st respondent, the burden of proving that there was no existing debt or liability is on the 1st respondent, and they have to discharge the same at the stage of the trial. Merely on the strength of an FIR lodged by the petitioner herein, this Court will not be justified in throwing to the bin the complaint lodged by the complainants under Section 138 of the Negotiable Instruments Act. The legal presumption of the cheque having been issued in discharge of liability has to be given due weightage. Whenever facts are disputed, the truth can only be allowed to emerge by weighing the evidence, and this is the duty of the trial court. 8. In **State of A.P. v. Golconda Linga Swamy** [2004(6) SCC 522], the Apex Court had occasion to succinctly lay down the principles that should guide the court while considering a petition under Section 482 of the Cr.P.C. Paragraph Nos. 5-8 of the judgment reads as under: **5.** Exercise of power under S.482 of the Code in a case of this nature ``` CRL.MCNO.5539&5530OF2021 ``` ``` 9 ``` is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. Ail courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the ``` CRL.MCNO.5539&5530OF2021 ``` ``` 10 ``` court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. **6.** In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6) - (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; - (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; - (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. **7.** In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal ``` CRL.MCNO.5539&5530OF2021 ``` ``` 11 ``` evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102) **==> picture [302 x 13] intentionally omitted <==** ``` CRL.MCNO.5539&5530OF2021 ``` ``` 12 ``` information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any ``` CRL.MCNO.5539&5530OF2021 ``` ``` 13 ``` of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” **8.** As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See ``` CRL.MCNO.5539&5530OF2021 ``` ``` 14 ``` Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant ``` CRL.MCNO.5539&5530OF2021 ``` ``` 15 ``` would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259] and State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89]. 9. In Rathish Babu (supra), the Apex Court was faced with an identical situation whereby the High Court in exercise of powers under Section 482 of the Cr.P.C. had quashed the summoning order in a proceeding under Section 138 of the NI Act. It was held that when there is legal presumption such as one under Section 118 and 139 of the NI Act, it would not be judicious for the quashing court to carry out a detailed enquiry on the facts alleged without first permitting the trial court to evaluate the evidence of the parties. The courts were cautioned that the quashing court should not take upon itself, the burden of separating the wheat from the ``` CRL.MCNO.5539&5530OF2021 ``` ``` 16 ``` chaff where facts are contested. It was also observed that the proceedings under Section 482 must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence. It is further held that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The court will not be justified in embarking upon enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The extraordinary powers conferred on this Court under Section 482 do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 10. In that view of the matter, I find no reason to allow these petitions. Reserving the right of the petitioner to raise his contentions at the appropriate stage before the trial court, this petition is dismissed. The trial court shall consider the matter untrammeled by any of the observations above. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** ps ``` CRL.MCNO.5539&5530OF2021 ``` ``` 17 ``` ## **`APPENDIX OF CRL.MC 5530/2021`** ## **`PETITIONER’S ANNEXURES:`** |**`PETITIONER’S `**|**`ANNEXURES:`**| |---|---| |**`ANNEXURE A1`**|**`CERTIFIED COPY OF THE COMPLAINT IN CC NO.`**| ||**`140/2020 BEFORE THE LEARNED JUDICIAL FIRST`**| ||**`CLASS MAGISTRATE COURT-III AT PALAKKAD, DATED`**| ||**`01/01/2020.`**| |**`ANNEXURE A2`**|**`A CERTIFIED COPY OF CHEQUE BEARING NUMBER`**| ||**`170457 DATED 02/11/2019 FOR RS. 3,00,000/-`**| ||**`DRAWN ON STATE BANK OF INDIA, PUTHUPARIYARAM`**| ||**`BRANCH.`**| |**`ANNEXURE A3`**|**`A CERTIFIED COPY OF THE RETURN MEMO REPORT`**| ||**`DATED 04/11/2019 ISSUED BY THE STATE BANK OF`**| ||**`INDIA, OLAVAKODE TOWN BRANCH.`**| |**`ANNEXURE A4`**|**`A CERTIFIED COPY OF LAWYER NOTICE DATED`**| ||**`19/11/2019.`**| |**`ANNEXURE A5`**|**`A TRUE COPY OF FIR IN CRIME NO. 0423/2019`**| ||**`DATED 05/11/2019 OF PALAKKAD CUSBA POLICE`**| ||**`STATION, PALAKKAD DISTRICT.`**| |**`RESPONDENTS’ `**|**`ANNEXURES: NIL`**| ``` CRL.MCNO.5539&5530OF2021 ``` ``` 18 ``` ## **`APPENDIX OF CRL.MC 5539/2021`** ## **`PETITIONER’S ANNEXURES:`** |**`PETITIONER’S `**|**`ANNEXURES:`**| |---|---| |**`ANNEXURE A1`**|**`A CERTIFIED COPY OF THE COMPLAINT IN CC NO.`**| ||**`137 OF 2020 BEFORE THE LEARNED JUDICIAL FIRST`**| ||**`CLASS MAGISTRATE COURT III, AT PALAKKAD,`**| ||**`DATED 01.01.2020.`**| |**`ANNEXURE A2`**|**`A CERTIFIED COPY OF CHEQUE BEARING NUMBER`**| ||**`170456 DATED 02.11.2019, FOR RS. 2,00,000/-`**| ||**`DRAWN ON STATE BANK OF INDIA, PUTHUPARIYARAM`**| ||**`BRANCH.`**| |**`ANNEXURE A3`**|**`A CERTIFIED COPY OF THE RETURN MEMO REPORT,`**| ||**`DATED 04.11.2019, ISSUED BY THE STATE BANK OF`**| ||**`INDIA, OLAVAKODE TOWN BRANCH.`**| |**`ANNEXURE A4`**|**`A CERTIFIED COPY OF THE LAWYER NOTICE DATED`**| ||**`19.11.2019.`**| |**`ANNEXURE A5`**|**`A TRUE COPY OF FIR IN CRIME NO. 0423 OF 2019,`**| ||**`DATED 05.11.2019 OF PALAKKAD CUSBA POLICE`**| ||**`STATION, PALAKKAD DISTRICT.`**| |**`RESPONDENTS’ `**|**`ANNEXURES: NIL`**|