Tess Thomas v. State of Kerala and T.S. George

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 CRL.MC NO. 2580 OF 2022 AGAINST THE ORDER/JUDGMENT IN ST 5291/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA** ## **PETITIONER/ACCUSED:** TESS THOMAS, AGED 33 YEARS, W/O MATHEW ANTONY, MOLIPADAVIL HOUSE, KARIKUZHI P.O, NEERETTUPURAM, THALAVADI VILLAGE, ALAPPUZHA DISTRICT, PIN – 689 571. BY ADVS. R.REJI M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE SUNEESH KUMAR R. ## **RESPONDENTS/STATE AND PETITIONER:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 T.S.GEORGE, AGED 65 YEARS, S/O.SEBASTIAN, THYVELIKKAKATH HOUSE, MUTHOLY P.O, PULIYANNOOR VILLAGE, KOTTAYAM DISTRICT, PIN – 686573. BY ADV. SRI.JOSEPH T.JOHN SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 07.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C.No.2580 of 2022** 2 ## **O R D E R** ## **Dated, this the 7[th] October, 2022** This is a petition filed under Section 482 of Cr.P.C to quash Annexure-1 complaint in S.T. No.5291/2020 on the files of the Judicial First Class Magistrate Court, Pala, alleging commission of offence under Section 138 of Negotiable Instrument Act. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the 2[nd] respondent in this matter. 3. It is argued by the learned counsel for the petitioner that in the complaint, it is alleged that the accused herein issued cheque for Rs.9 lakh dated 14.08.2020 to discharge the liability arising out of money handed over to the complainant to one Danty, the brother-inlaw of the accused and also Rs.6 lakh given directly to the accused. When the cheque presented for encashment, the same got **Crl.M.C.No.2580 of 2022** **==> picture [7 x 9] intentionally omitted <==** dishonoured and, thereafter, when notice was issued demanding the amount covered by the cheque, no amount paid. Accordingly, prosecution was launched alleging commission of offence punishable under Section 138 of the Negotiable Instrument Act. 4. It is submitted by the learned counsel for the petitioner that Annexure-5 is a complaint lodged by the complainant before the District Police Superintendent, Alappuzha and wherein it is stated that Rs.9 lakh was collected by the 2[nd] respondent in the petition, Dany Antony. He would submit that FIR was registered on the basis of Annexure-5 complaint, whereupon the 4[th] respondent moved anticipatory bail application before the Sessions Court, Alappuzha and she was granted bail on the ground that no documentary evidence _prima facie_ available to show payment of this sum in the account of the 1[st] accused or other accused. In fact, the anticipatory bail plea at ## **Crl.M.C.No.2580 of 2022** 4 the instance of the 4[th] accused was considered while granting bail to the 4[th] accused alone, in a case alleging commission of offences under Section 420 read with Section 34 of the Indian Penal Code. In the said case issuance of cheque for Rs.9 lakh by the petitioner, its dishonour etc., were not pointed out at all. 5. In this matter, the case put up by the complainant before the trial court is that the accused issued cheque for Rs.9 lakh as detailed above and the same was dishonoured when it is presented for collection. Therefore, the complaint would go to show that _prima facie_ the commission of offence under Section 138 is made out and the innocence of the accused is a matter to be decided during trial and premature quashment of the proceedings is not justified. 6. In the decision reported in [1976 (3) SCC 736], _**Smt.Nagawwa v. Veeranna Shivalingappa**_ _**Konjalgi**_ , the Apex Court enumerated the list of cases where an order of the Magistrate issuing **Crl.M.C.No.2580 of 2022** 5 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.”_ That apart, in the decisions reported in [1988(1) SCC 692], _**Madhavrao Jiwajirao Scindia**_ _**v. Sambhajirao Chandrojirao Angre**_ ; [1992 Supp (1) SCC 335], _**State of Haryana v. Bhajan Lal**_ ; [1995 (6) SCC 194], _**Rupan Deol Bajaj v. Kanwar**_ **Crl.M.C.No.2580 of 2022** 6 _**Pal Singh Gill**_ ; [1996 (5) SCC 591], _**Central**_ _**Bureau of Investigation v. Duncans Agro Industries Ltd.**_ ; [1996 (8) SCC 164], _**State of Bihar v. Rajendra Agrawalla**_ ; [1999 (3) SCC 259], _**Rajesh Bajaj v. State NCT of Delhi**_ ; [2000 (3) SCC 269], _**Medchl Chemicals & Pharma (P)**_ _**Ltd. v. Biological E.Ltd.**_ ; [2000 (4) SCC 168], _**Hridaya Ranjan Prasad Verma v. State of Bihar**_ ; [ 2001(8) SCC 645], _**M.Krishnan v. Vijay Singh**_ ; [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_ **Crl.M.C.No.2580 of 2022** 7 _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 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_ **Crl.M.C.No.2580 of 2022** 8 _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_ **Crl.M.C.No.2580 of 2022** 9 _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 the principles set out by the Apex Court, extracted herein above. 8. Having considered the facts of this case, in view of the settled legal position, it is crystal clear that cheque alleged to be issued by the petitioner to discharge the liability in respect of money alleged to be borrowed by the petitioner, got dishonoured when the same was presented for encashment. Therefore, after following the legal formalities, the 2[nd] respondent launched prosecution. Thus a _prima facie_ case to be tried, is well discernable and such a case cannot be quashed by executing power under Section 482 of Cr.P.C. Therefore, I am not inclined to allow this petition and this petition stands dismissed, with liberty to ## **Crl.M.C.No.2580 of 2022** **==> picture [13 x 9] intentionally omitted <==** petitioner to raise all these contentions before the trial court during trial. Since it is the statutory mandate that complaint involving offence under Section 138 of the NI Act to be disposed of within six months, the learned Magistrate is directed to expedite the trial and dispose of the case, within a period of three months from the date of receipt of a copy of the judgment, without fail. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **Crl.M.C.No.2580 of 2022** 11 ## **APPENDIX OF CRL.MC 2580/2022** PETITIONER'S ANNEXURES: ANNEXURE1 CERTIFIED COPY OF THE COMPLAINT IN THE S.T NO.5291/2020, DATED 02.11.2020 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA. ANNEXURE2 TRUE COPY OF THE DISHONORED CHEQUE NO.319798, DATED 14.08.2020 OF THE STATE BANK OF INDIA, TOWN BRANCH, ALAPPUZHA. ANNEXURE3 CERTIFIED COPY OF THE LEGAL NOTICE DATED 09.09.2020. - ANNEXURE4 TRUE COPY OF RELEVANT EXTRACT OF HER PASSPORT BEARING L6769667 ISSUED ON 02.01.2014 FROM THE REGIONAL PASSPORT OFFICE, KOCHI. ANNEXURE5 TRUE COPY OF THE JOINT PETITION FILED BY GEORGE AND OTHERS BEFORE THE SUPERINTENDENT OF POLICE, ALAPUZHA. ANNEXURE6 TRUE COPY OF THE FIR IN CRIME NO. 797/2020 OF EDATHWA POLICE STATION, ALAPUZHA DISTRICT. ANNEXURE7 TRUE COPY OF THE ORDER DATED 08.09.2020 IN CRL.M.P NO.2216/2020 THE HON'BLE SESSIONS COURT, ALAPUZHA.