Shameena v. Leelamma and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **Crl.MC.No. 750 of 2017 ()** **-------------------------ST.NO. 3579/2014 of JUDICICAL FIRST CLASS MAGISTRATE COURT, ADOOR CRIME NO. 1079/2014 OF ENATHU POLICE STATION , PATHANAMTHITTA ----** **PETITIONER(S)/ACCUSED:** **---------------------** **SHAMEENA,** **AGED 44 YEARS, D/O. SOUDA BEEVI, KAVILETHEKKETHIL VEEDU, ENATHU (PO), ADOOR, PATHANAMTHITTA.** **BY ADVS.SRI.NOBEL RAJU SRI.NIKHIL.A.AZEEZ** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. LEELAMMA, AGED 50 YEARS, W/O. SAM, SAMA VILLA, ENATHU, ADOOR PATHANAMTHITTA - 689645.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S.I. OF POLICE, ENATHU POLICE STATION, PATHANAMTHITTA DISTRICT - 682031.** **R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKG** ## **Crl.MC.No. 750 of 2017 () --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1 A CERTIFIED COPY OF THE COMPLAINT, ST NO.3579/2014 FILED BY THE 1ST RESPONDENT DATED 30/10/2014 BEFORE THE JFMC, ADOOR ANNEXURE A2 A TRUE COPY OF THE LEGAL NOTICE DATED 1/10/2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. ANNEXURE A3 A CERTIFIED COPY OF THE FIR NO.1079/2014 OF ENATHU POLICE. ANNEXURE A4 A CERTIFIED OF THE FINAL REPORT OF FIR 1079/2014. ANNEXURE A5 A TRUE COPY OF THE COMPLAINT AND THE STATEMENT GIVEN BY THE 1ST RESPONDENT. RESPONDENT(S)' EXHIBITS ----------------------NIL /TRUE COPY/** **P.S. TO JUDGE** ## **SKG** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 750 of 2017 ================== Dated this the 30[th] day of January, 2017 ## O R D E R The petitioner is the sole accused in S.T.No.3579 of 2014 on the file of the Judicial First Class Magistrate Court, Adoor, which has been instituted as a complaint at the instance of the first respondent/ complainant. According to the petitioner, she had secured a loan of Rs.2,75,000/- from the first respondent. It is alleged that at the time of transaction of money, the petitioner was compelled to hand over a blank signed cheque leaf along with one blank stamp paper and original title deed of the property as security to the 1[st] respondent. The petitioner had repaid Rs.4,75,000/- to the first respondent, which includes the principal and interest on the said borrowed amount. It is also alleged that the 1[st] respondent had later demanded more money as interest and the blank signed cheque given by the petitioner was misused by the 1[st] respondent, who had filled up the cheque for a higher amount of Rs.11 lakhs and presented for encashment without the permission of the petitioner, which resulted in dishonour and later in the institution of Sec.138 complaint as S.T.No.3579 of 2014. The petitioner had instituted a criminal case against the 1[st] respondent alleging offences under Sections 420 and 34 of Crl.M.C.750/17 - : 2 :- I.P.C., Sections 13, 17, 18A and 18B of the Kerala Money Lenders Act, 1958 and Sections 3 and 9 of the Prohibition of charging Exorbitant Interest Act, 2012, etc. 2. The first contention raised by the petitioner is that in the statutory notice, which preceded S.T.No.3579 of 2014, the 1[st] respondent/complainant has not divulged any details as to the transaction, its nature, dates of transactions, modes of transactions, etc. On this basis, it is contended by the learned counsel for the petitioner that this Court in the judgment in K.K.Divakaran v. State of Kerala and another reported in 2016 (4) KHC 901 = 2016 (4) KLT 233, has held that in a criminal complaint involving dishonour of cheque, the accused should be informed before the trial not only of the nature of the offence, but also the particulars of the transaction which are necessary for him to effectively meet the case against him and the suppression of these particulars in the complaint alone is sufficient to order his acquittal, etc. It is further contended that in the case Jose v. P.C.Joy (Crl.R.P.Nos.4487 and 3275 of 2006, judgment dated 21.3.2007), this Court held that the blank signed cheque given to the complainant who entered his name as payee without instructions from the accused will not make the accused liable for the offence under Section 138 of the Negotiable Instruments Act, etc. On this basis, it is argued by the petitioner that there are no ingredients, so as to attract the Section incorporated in the complaint and Crl.M.C.750/17 - : 3 :- that there is no chance of conviction in the case of continuation of the trial and that the complaint against the petitioner, as per Annexure A1, is liable to be quashed, etc. 3. The second contention raised by the petitioner is that as regards the monetary transaction between the petitioner and the 1[st] respondent herein, the petitioner had repaid the amounts in 3 instalments and she had also paid interest thereon and even after the collection of Rs.4.75 lakhs as the capital and interest, the 1[st] respondent was not ready to return the documents taken from the petitioner and when the 1[st] respondent threatened the petitioner with demand for exorbitant interest and had filled the blank signed cheque of the petitioner without her instructions for an amount of Rs.11 lakhs, which resulted in the dishonour of the cheque, etc., the petitioner was constrained to file complaint before the Judicial First Class Magistrate's Court, Adoor, stating about the charging of exorbitant interest by the petitioner and the learned Magistrate had directed the Police to conduct investigation as per Sec.156(3) of the Cr.P.C. That thereupon the Enath Police has registered Anx.A-3 Crime No. 1079/2014 dated 6.11.2014, in which the 1[st] respondent herein has been arrayed as accused for offences under Secs.420, 34 of the I.P.C. read with Secs.13, 17, 18A and 18B of the Kerala Money Lenders Act, 1958, Secs.3 and 9 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012, etc. Further, as per Anx.A-4 the Crl.M.C.750/17 - : 4 :- Enath Police authorities have completed the investigation and have submitted final report before the Judicial First Class Magistrate's Court, Adoor and the case is now numbered as Calendar Case, C.C.No. 2322/2015, etc. The petitioner had also preferred Anx.A-5 complaint before the Chief Minister in 2015, regarding the retention of the security even after the payment of the amount with interest and that in the recordal statement, the 1[st] respondent had undertaken that she is having the original deeds and documents of the petitioner and once the money is repaid, the documents will be given back, etc. 4. On the basis of these factual details, as borne out by Anx. A-3 FIR, Anx.A-4 final report and Anx.A-5 petition, etc. the learned counsel appearing for the petitioner would contend that Anx.A-4 final report in Anx.A-3 FIR is a counter case institued by the petitioner in relation to the impugned Anx.A-5 complaint for Sec.138 offence instituted against the petitioner accused by the 1[st] respondent and that this Court may pass necessary orders in the interest of justice that the said case may be tried as case and counter case one after the other in the light of the salutary principle laid down by the Apex Court in decisions, in Sudir v. State of M.P reported in 2001 (1) KLT 682 (SC) = 2001 (2) SCC 688. 5. Heard Sri.Nobel Raju, learned counsel appearing for the petitioner/accused, and Sri.Saigi Jacob Palatty, learned prosecutor Crl.M.C.750/17 - : 5 :- appearing for the second respondent/State. 6. As regards the primary contention urged by the petitioner based on the judgment of this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KHC 901 = 2016 (4) KLT 233, this Court is of the considered view that the said plea taken by the petitioner is not a matter to be appropriately considered in proceedings under Sec.482 of the Cr.P.C. for considering the plea for quashment and these are all matters which are best left to be urged by the petitioner accused before the trial court at the appropriate stage. If such contentions are raised by the petitioner at the appropriate stage before the trial court, then it is for that court to deal with the same in accordance with law, based on the facts and circumstances of the case. Therefore, no interference is called for in the facts of this case so as to grant the prayer for quashment of the impugned criminal proceedings on this aspect of the matter. 7. As regards the second contention raised by the petitioner, it is seen that the only prayer made by the petitioner in this Crl.M.C. is for quashment of the impugned complaint. It is not proper for this Court to take up the above plea in the absence of prayer in that regard. Moreover, the investigation officer in Anx.A-4 Crime No.1079/2014 is not impleaded. However, if the petitioner wants to urge this ground that the case and counter case should be tried one after the other, in the light of the salutary principle laid down by the Apex Court, then it is for the Crl.M.C.750/17 - : 6 :- petitioner to work out her remedies in accordance with law and it will be open to the petitioner to institute appropriate application under Sec. 482 of the Cr.P.C. focusing on these aspects, with a proper prayer in that regard and after impleading necessary parties. In the light of these aspects, the prayer for quashment cannot be granted. With these observations and directions, the Crl.M.C. will stand closed. sdk+ csl Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge