Tess Thomas v. State of Kerala and Vargheese Mathew

# **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. 2538 OF 2022** **AGAINST THE ORDER/JUDGMENT IN ST 1472/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RAMANKARI** ## **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 COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. 2 VARGHESE MATHEW, AGED 65 YEARS, S/O MATHEW, NADUVILAPARAMBIL HOUSE, MITHRAKARY P.O, MUTTAR VILLAGE, ALAPPUZHA DISTRICT, PIN-689 595. BY ADVS. SRI.JOSEPH T.JOHN SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C.No.2538 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-A1 complaint in S.T.No.1472/2020 on the files of the Judicial First Class Magistrate Court, Ramankari, alleging commission of offence punishable 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 the accused. When the cheque presented for encashment, the same got dishonoured and, thereafter, when notice was issued demanding the amount covered by the ## **Crl.M.C.No.2538 of 2022** ## 3 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-A1 is a false complaint lodged by the complainant and the cheque involved was not issued by the petitioner for any purpose. 5. In this matter, the complainant launched prosecution when cheque for Rs.9 lakh dated 14.08.2020 issued by the accused was dishonoured for want of funds, wherein the complainant would allege that the accused borrowed Rs.2,50,000/on 06.01.2018; Rs.2,00,000/- on 15.01.2018 and Rs.4,50,000/on 29.04.2018 on the assurance of arranging employment to the daughter of the complainant in Dubai. 6. In the decision reported in [1976 (3) SCC 736], _**Smt.Nagawwa v. Veeranna Shivalingappa**_ **Crl.M.C.No.2538 of 2022** 4 _**Konjalgi**_ , 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.”_ That apart, in the decisions reported in [1988(1) SCC 692], _**Madhavrao Jiwajirao Scindia**_ _**v. Sambhajirao Chandrojirao Angre**_ ; [1992 Supp **Crl.M.C.No.2538 of 2022** 5 (1) SCC 335], _**State of Haryana v. Bhajan Lal**_ ; [1995 (6) SCC 194], _**Rupan Deol Bajaj v. Kanwar**_ _**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_ **Crl.M.C.No.2538 of 2022** 6 _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 prosecution. The power should be_ _used sparingly and with abundant caution._ _(iv) The complaint is not required to_ _verbatim reproduce the legal ingredients of_ **Crl.M.C.No.2538 of 2022** 7 _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_ **Crl.M.C.No.2538 of 2022** 8 _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 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 ## **Crl.M.C.No.2538 of 2022** 9 Section 482 of Cr.P.C. Therefore, I am not inclined to allow this petition and this petition stands dismissed, with liberty to 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.2538 of 2022** 10 ## **APPENDIX OF CRL.MC 2538/2022** PETITIONER'S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE CMP NO.1229/2020, DATED 10.11.2020, NOW PENDING AS S.T. NO.1472/2020, FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, RAMANKARY. ANNEXURE A2 TRUE COPY OF THE DISHONORED CHEQUE NO.319796, DATED 14.08.2020 OF THE STATE BANK OF INDIA, TOWN BRANCH, ALAPPUZHA. ANNEXURE A3 TRUE COPY OF THE LEGAL NOTICE DATED 23.09.2020. ANNEXURE A4 TRUE COPY OF RELEVANT EXTRACT OF THE PASSPORT OF THE PETITIONER BEARING NO. L6769667 ISSUED ON 02.01.2014 FROM THE REGIONAL PASSPORT OFFICE, KOCHI. ANNEXURE A5 TRUE COPY OF THE COMPLAINT. ANNEXURE A6 TRUE COPY OF THE FIR IN CRIME NO. 797/2020 OF EDATHWA POLICE STATION ALONG WITH THE COMPLAINT.