Surendranath v. State of Kerala and MAVELI ADVERTISEMENT

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022/11TH KARTHIKA,** ## **1944** **CRL.MC NO. 5886 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CC 709/2019 OF JUDICIAL FIRST CLASS MAGIST. COURT, ANGAMALY(TEMPORARY)** ## **PETITIONER/2ND ACCUSED:** SURENDRANATH, AGED 67 YEARS, S/O.NARAYANA KURUP, CHATHANATTU HOUSE, PUTHUKKARI, MITHRAKKAL P.O., EDATHUA, KUTTANAD, ALAPPUZHA DISTRICT, PIN – 689 595. BY ADVS. K.N.ABHILASH SUNIL NAIR PALAKKAT M.A.AHAMMAD SAHEER RITHIK S.ANAND ANU PAUL SREELAKSHMI MENON P. ## **RESPONDENTS/STATE AND COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2 M/S.MAVELI ADVERTISEMENT, ROOM NO.20/608B, CHIRAKKAL COMPLEX, KALADY ROAD, ANGAMALY P.O., REPRESENTED BY PROPRIETOR SMT.REETHAMMA OUSEPH, PIN – 683 572. BY ADVS. SRI.THAREEQ ANVER.K SRI.VINOD RAVINDRANATH(K/001479/1999) SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C.No.5886 of 2022** 2 ## **O R D E R** ## **Dated, this the 2[nd] November, 2022** This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C', for short) to quash Annexure-A1 complaint and the petitioner is the 2[nd] accused in C.C. No.709/2019 on the files of Judicial First Class Magistrate Court, Angamaly. 2. Heard the learned counsel for the petitioner, learned counsel for the 2[nd] respondent as well as learned Public Prosecutor. 3. It is submitted by the learned counsel for the petitioner that, the petitioner who is arrayed as 2[nd] accused in this case is not the General Secretary of the Samasta Nair Samajam, as contended by the complainant. Therefore, he is not liable to be prosecuted, as contended by the complainant and as such Annexure-A1 complaint is liable to be quashed. ## **Crl.M.C.No.5886 of 2022** 3 4. When a pertinent question was asked to the learned counsel for the petitioner as to whether he is one among the signatories of the cheque, the learned counsel submitted that the petitioner, who is the 2[nd] accused, is one among the signatories of the cheque. On reading the complainant averments, prima facie, the allegations raised by the complainant, would constitute commission of offences punishable under Section 138 of NI Act by the 2[nd] accused as well. Therefore, such a complaint is not liable to be quashed. The liability, if any, as submitted by the learned counsel for the petitioner, can be canvassed during trial to prove his innocence. 5. Before addressing the prayer, I am tend to refer what are the principles governing quashment of complaints under S.482 of Cr.P.C.? 6. In the decision reported in _**Smt.Nagawwa**_ - _**v. Veeranna Shivalingappa Konjalgi**_ , (1976 KLT ## **Crl.M.C.No.5886 of 2022** 4 OnLine 1043 (SC) = (1976) 3 SCC 736), the Apex Court enumerated the list of cases where an order of the Magistrate issuing process against the accused can be quashed or set aside. The same are as under: _“(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused;_ _(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is a sufficient ground for proceeding against the accused;_ _(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like.”_ **Crl.M.C.No.5886 of 2022** 5 That apart, in the decisions reported in (1988 (2) KLT OnLine 1108 (SC) = (1988) 1 SCC 692), _**Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre**_ ; (1991 (1) KLT OnLine 1001 (SC) = 1992 Supp (1) SCC 335), _**State of Haryana v. Bhajan Lal**_ ; (1995 (2) KLT 830 (SC) = (1995) 6) SCC 194), _**Rupan Deol Bajaj**_ _**v. Kanwar Pal Singh Gill**_ ; (1996 (2) KLT OnLine 1128 (SC) = (1996) 5 SCC 591), _**Central Bureau of Investigation v. Duncans Agro Industries**_ _**Ltd.**_ ; (1996 (1) KLT OnLine 1023 (SC) = (1996) 8 SCC 164), _**State of Bihar v. Rajendra Agrawalla**_ ; (1999 (2) KLT SN 75 (C.No.81) SC = (1999) 3 SCC 259), _**Rajesh Bajaj v. State NCT of Delhi**_ ; (2000 (2) KLT SN 57 (C.No.64) SC = (2000) 3 SCC 269), _**Medchl Chemicals & Pharma (P) Ltd. v.**_ _**Biological E.Ltd.**_ ; (2000 (2) KLT OnLine 1013 (SC) = (2000) 4 SCC 168), _**Hridaya Ranjan Prasad**_ _**Verma v. State of Bihar**_ ; (2001 (3) KLT SN 89 ## **Crl.M.C.No.5886 of 2022** 6 (C.No.117) SC = (2001) 8 SCC 645), _**M.Krishnan**_ _**v. Vijay Singh**_ ; (2004 (3) KLT 789 (SC) = (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 absurd and inherently improbable._ _(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate_ **Crl.M.C.No.5886 of 2022** 7 _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._ 7. Thus the law is no more _res integra_ on the point that a complaint can be quashed only when it falls under the category of cases as per ## **Crl.M.C.No.5886 of 2022** **==> picture [6 x 9] intentionally omitted <==** the principles set out by the Apex Court, extracted herein above. In fact, this petition would not fall under any of the categories in above decisions. Therefore, this petition found to be meritless and is accordingly dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **Crl.M.C.No.5886 of 2022** 9 ## **APPENDIX OF CRL.MC 5886/2022** PETITIONER'S ANNEXURES: ANNEXURE A1 THE CERTIFIED COPY OF THE COMPLAINT DATED 12.07.2019 IN CC NO.709/2019 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE, ANGAMALY, ERNAKULAM DISTRICT. ANNEXURE A2 THE TRUE COPY OF THE NOTICE DATED 29.05.2019 ISSUED BY THE COUNSEL FOR THE 2ND RESPONDENT TO THE ACCUSED. ANNEXURE A3 THE TRUE COPY OF THE BROCHURE DATED NIL PUBLISHED BY THE SAMASTA NAIR SAMAJAM FOUNDATION. ANNEXURE A4 THE TRUE COPY OF THE EXTRACT DOWNLOADED FROM THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS DATED NIL REGARDING THE DETAILS OF THE DIRECTORS OF THE COMPANY SAMASTA NAIR SAMAJAM FOUNDATION