Shahida H. W/o NabeeL Chandh.G. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **Crl.MC.No.5339 OF 2018** **AGAINST THE ORDER IN CC 423/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, PALAKKAD** ## **PETITIONER:** **SHAHIDA H. W/O.NABEEL CHANDH.G., AGED ABOUT 29 YEARS,VII/140(2), PUTHUR ROAD, KOPPAM, PALAKKAD - 678 001.** **BY ADVS. SRI P VIJAYABHANU-SR ADV SRI.JAMSHEED HAFIZ SRI.T.ASAF ALI SMT.T.S.SREEKUTTY** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682 031. 2 G.SANTHOSH S/O.GOPALAN, AGED ABOUT 50 YEARS,XVI/675-1, GABLE AND GAIN HOUSE,ADITYA GARDEN, SRI.NAGAR COLONY,KUNNATHURMENDU.P.O., PALAKKAD - 678 013. R2 BY ADV. SRI.A.T.ANILKUMAR R2 BY ADV. SMT.V.SHYLAJA SRI C K PRASAD-PP,** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-01-2020, THE COURT ON 17-02-2020 PASSED THE FOLLOWING:** Crl.M.C.No.5339/2018 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.5339 of 2018 -----------------------------------------------Dated this the 17[th] day of February, 2020 ## **O R D E R** The petitioner is the accused in the case C.C.No.423/2017 on the file of the Court of the Judicial First Class Magistrate-III, Palakkad. 2. The aforesaid case is one instituted upon the complaint filed against the petitioner by the second respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. Annexure-A1 is the copy of the complaint. The material averments in Annexure-A1 complaint are as follows: The complainant and his wife Hemalatha, Gafoor and the accused were partners of the firm by name “Nora Foods”. They had executed a partnership deed on 17.02.2015. The complainant and his wife retired from the partnership on 16.06.2016. At the Crl.M.C.No.5339/2018 3 time of retirement of the complainant and his wife, a memorandum of understanding was executed on 15.06.2016 by them and Gafoor and the accused. As per the memorandum of understanding and the deed of retirement, the accused and Gafoor had agreed to settle the account of the complainant and his wife. The accused signed and issued a cheque dated 31.12.2016 for Rs.18,00,000/- to the complainant in discharge of that liability. The complainant presented the cheque in the bank. It was returned unpaid on 10.01.2017 for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused on 31.01.2017 demanding payment of the amount of the cheque. The accused received the notice on 06.02.2017. She sent a reply raising false contentions. She did not pay the amount of the cheque. After receiving the notice, on 04.03.2017, she paid an amount of Rs.30,000/- to the complainant through bank transfer. 4. This petition is filed under Section 482 Cr.P.C by the accused for quashing the proceedings against her in the case C.C.No.423/2017 which is based on Annexure-A1 complaint. Crl.M.C.No.5339/2018 4 5. Heard learned senior counsel who appeared for the petitioner and also the counsel for the second respondent/complainant. 6. Learned senior counsel for the petitioner raised three grounds before this Court for quashing Annexure-A1 complaint. They are: (1) The averments contained in Annexure-A1 complaint do not attract or disclose an offence punishable under Section 138 of the Act. (2) The cheque was issued by the petitioner/accused to the complainant not in discharge of any legally enforceable debt or liability but only as a security. (3) Learned Magistrate has mechanically taken cognizance of the offence without recording any reasons. 7. There is no merit in the contention of the learned senior counsel for the petitioner that Annexure-A1 complaint does not disclose the ingredients of an offence punishable under Section 138 of the Act. In **Harihara Krishnan v. Thomas : AIR 2017 SC 4125** , the Supreme Court has stated as follows: _“Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138._ Crl.M.C.No.5339/2018 5 _Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand”._ 8. Annexure-A1 complaint contains all the aforesaid factual allegations disclosing and attracting an offence punishable Crl.M.C.No.5339/2018 6 under Section 138 of the Act. 9. Learned senior counsel for the petitioner invited the attention of this Court to Clause (4) in the memorandum of understanding (Annexure-A7) dated 15.06.2016 executed by the parties and contended that the cheque was issued by the petitioner to the complainant not in discharge of any liability or debt but only as a security for the amount to be paid by the reconstituted firm. 10. Clause (4) of Annexure-A7 memorandum of understanding reads as follows: _“Whereas it is agreed by the 2[nd] party that the amount of 20,00,000/- availed from Mr.Preman and Mr.Farooq are to be paid on or before July 20[th] , 2016 and Rs.18,00,000/- (Rupees Eighteen lakhs only) to the 1[st] party is to be paid on or before 31.12.2016. For this the 2[nd] party has given personal signed cheque for the mentioned amount and date. (Cheque No.71606 SBT Mannur Branch). The same cheque will be replaced with company cheque after the reconstitution of the firm for the same amount and date.”_ Crl.M.C.No.5339/2018 7 11. On a bare perusal of the stipulation contained in Clause (4) of Annexure-A7 memorandum of understanding it can be seen that the second party (the accused and Gafoor) had agreed to pay Rs.18,00,000/- to the first party (the complainant and his wife) and that the petitioner/accused had signed and issued her own cheque for an amount of Rs.18,00,000/- to the complainant for the aforesaid amount. 12. Learned senior counsel for the petitioner would contend that there is a specific stipulation in Clause (4) of Annexure-A7 document that the cheque shall be replaced with company cheque after the reconstitution of the firm for the same amount and date. The accused has no case that the cheque issued to the complainant by her was replaced by the cheque of the reconstituted firm. If no such cheque was replaced, it eludes comprehension how the complainant would be found fault with for such omission. 13. At any rate, when a cheque is admittedly signed and issued by a person to another person, the presumption under Section 139 of the Act arises that it was issued in discharge of a Crl.M.C.No.5339/2018 8 legally enforceable debt or liability. The burden is upon the accused to rebut the presumption under Section 139 of the Act. The presumption has to be rebutted by the accused during the trial of the case. It is for the accused to prove that there was no legally enforceable debt or liability. It is a matter of proof and evidence. It is not a matter which can be decided in a petition filed under Section 482 Cr.P.C. 14. Whether the cheque was given as security or not, or whether there was outstanding liability or not, is a question of fact which could be determined only by the trial court after recording evidence of the parties. The High Court shall not express its view on disputed questions of fact in a petition under Section 482 Cr.P.C to come to a conclusion that the offence is not made out (See **HMT Watches Limited v. Abida : (2015) 11 SCC 776** ). 15. The other contention raised by the learned senior counsel for the petitioner is that the learned Magistrate has mechanically taken cognizance of the offence and issued process without recording any reasons. I have already found that Crl.M.C.No.5339/2018 9 Annexure-A1 complaint contains necessary ingredients of an offence punishable under Section 138 of the Act. Therefore, the cognizance of the offence taken by the learned Magistrate on the basis of the averments in the complaint cannot be found fault with. The Magistrate is not expected to record reasons in detail at the time of taking cognizance. What is necessary is only that the learned Magistrate shall apply his mind to the averments in the complaint. In the instant case, there is nothing to show that the learned Magistrate had not applied his mind to the averments in the complaint before taking cognizance of the offence and issuing process to the accused. 16. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. The legislature has stressed the need Crl.M.C.No.5339/2018 10 to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order (See **Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal : AIR 2003 SC 1900** ). 17. The discussion above would show that the prayer for quashing the proceedings against the petitioner before the court cannot be allowed on any of the grounds urged by the petitioner. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.5339/2018 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEX.A:** **THE CERTIFIED COPY OF THE ORDER SHEET SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD DATED 20.04.2018.** **ANNEX.A1: THE CERTIFIED COPY OF THE COMPLAINANT FILED BY THE 2ND RESPONDENT IN C.C.NO.423/2017 BEFORE JFCM-III, PALAKKAD.** **ANNEX.A2: A TRUE COPY OF THE LEGAL NOTICE DATED 31/01/2017 ISSUED TO THE PETITIONER. ANNEX.A3: A TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER DATED 02/02/2017. ANNEX.A4: A TRUE COPY OF THE NOTICE DATED 20/02/2017 SENT BY THE COMPLAINANT. ANNEX.A5: A TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER DATED 22/2/2017.** **ANNEX.A6: A TRUE COPY OF THE PARTNERSHIP DEED DATED 20/11/2014.** **ANNEX.A7: A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 15/06/2016.** **ANNEX.A8: A TRUE COPY OF THE DEED OF RETIREMENT DATED 16/6/2016.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE