T.P. Salim v. State of Kerala and Wallmax Paint Pvt. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945`** ``` CRL.MCNO.3891OF2023 AGAINSTTHEORDER/JUDGMENTINCC803/2022OFJMFC(SPECIAL COURT)FORTRIALOFSEC.138,NIACTCASES(TEMPORA ``` ## **`PETITIONER/S:`** ``` T.P.SALIM AGED55YEARS S/OMAMMAD, PARTNER,T.P.PLYWOOD,CHULLIODEROAD, SULTHANBATHERYP.O.,WAYANAD, RESIDINGATCHINGLY(H), CHULLIODEROAD,SULTHANBATHERYP.O., - WAYANAD,PIN673592 ``` ``` BYADVS. NIRMALVNAIR ENCILK.SABU ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 ``` ``` 2WALLMAXPAINTPVT.LIMITED REPRESENTEDBYTHEIRFINANCEMANAGER, RAJESH.K,S/OM.R.KARUNAKARANNAIR, AGED44YEARS,349-D,ALDRITCOMPLEX, - VADUTHALAP.O.,ERNAKULAM,PIN 682023 BYADVS. PHILIPT.VARGHESE ACHUSUBHAABRAHAM(K/001758/1999) V.T.LITHA(K/278/2006) K.R.MONISHA(K/915/2013) ``` ``` CRL.MCNO.3891OF2023 ``` ``` 2 ``` ``` MIHIRSA.M.(K/551/2021) ``` ``` SRI.MPPRASHANTH,PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON06.07.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.3891OF2023 ``` ``` 3 ``` ## **ORDER** The petitioner herein is the 2nd accused in C.C. No. 803/2022 on the file of the Judicial Magistrate of First Class (NI Act cases), Ernakulam. In the aforesaid case, he is facing prosecution for committing offences punishable under section 138 of the Negotiable Instruments Act, 1882. 2. The allegation in the complaint, a copy of which is produced as Annexure-8, is that certain items were purchased from the de facto complainant by M/s T.P. Plywood, represented by its partner who is the petitioner herein and towards the value, a sum of Rs. 1,08,748/- was due. For discharge of the said liability, a cheque dated 20.04.2018 was issued. On presentation of the cheque, same was dishonored, and later, a notice was issued on 02.05.2018. On the failure of the petitioner to pay the amount within the statutory period, a complaint was instituted. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the party respondent. 4. The learned counsel appearing for the petitioner submits that the petitioner herein is a Dealer of Wallmaax Paints Pvt. Ltd., a manufacturer of wall paints. A certain Sabu had purchased paint manufactured by the 2nd respondent and later lodged a complaint before the Consumer Disputes Redressal Forum, alleging that the quality of paint supplied was deficient. The said complaint was allowed by ``` CRL.MCNO.3891OF2023 ``` ``` 4 ``` Annexure-3 judgment dated 21.01.2021, and directions were issued to the respondents therein to pay compensation to the tune of Rs. 20,000/-. It is stated that the cheque presented by the 2nd respondent was entrusted by way of security. It is also asserted that no consent was granted by the petitioner to the 2nd respondent to present the same. It is on these assertions that this petition is filed seeking to quash the proceedings. 5. The learned counsel appearing for the party respondent submits that the complaint under the Negotiable Instruments Act was filed in the year 2018, and to date, the petitioner has not appeared before the learned Magistrate. A non-bailable warrant is also pending. According to the learned counsel, the award passed by the Consumer Court has nothing to do with the cheque issued. As to whether the transaction had actually taken place, whether the cheque is supported by consideration, and whether there is a legally enforceable debt is to be determined by the jurisdictional Magistrate after taking evidence. Relying on the law laid down in **Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi)** 2022 (2) KLT Online 1037 (SC) and **Rajeev Kourav v. Baisahab and Ors.** [2020 (2) KLJ 463], it is submitted that this Court will not be justified in embarking upon an enquiry as to whether the evidence in question is reliable or not or whether, on a reasonable appreciation of it, the accusation would or would not be sustained. ``` CRL.MCNO.3891OF2023 ``` ``` 5 ``` 6. I have considered the submissions advanced and have gone through the records. 7. The records reveal that the cheque alleged to have been issued by the petitioner to the party respondent has been dishonored on presentation. After complying with the legal formalities, a complaint has been filed and the same is pending consideration. Admittedly, the petitioner has not appeared before the learned Magistrate though the complaint was instituted as early as in the year 2018. As rightly submitted by the learned counsel appearing for the 2nd respondent, the burden of proving that there was no existing debt or liability is on the petitioner, and they have to discharge the same at the stage of the trial. The legal presumption of the cheque having been issued in discharge of liability has to be given due weightage. Whenever facts are disputed, the truth can only be allowed to emerge by weighing the evidence, and this is the duty of the trial court. 8. In **Rathish Babu** (supra), the Apex Court was faced with an identical situation whereby the High Court, in exercise of powers under Section 482 of the Cr.P.C., had quashed the summoning order in a proceeding under Section 138 of the NI Act. It was held that when there is a legal presumption such as one under Sections 118 and 139 of the NI Act, it would not be judicious for the quashing court to carry out a ``` CRL.MCNO.3891OF2023 ``` ``` 6 ``` detailed enquiry on the facts alleged without first permitting the trial court to evaluate the evidence of the parties. The courts were cautioned that the quashing court should not take upon itself the burden of separating the wheat from the chaff where facts are contested. It was also observed that the proceedings under Section 482 must not become an expedition into the merits of a factual dispute so as to conclusively vindicate either the complainant or the defense. It is further held that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The court will not be justified in embarking upon enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The extraordinary powers conferred on this Court under Section 482 do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 9. In that view of the matter, I find no reason to allow this petition. Reserving the right of the petitioner to raise his contentions at the appropriate stage before the trial court, this petition is dismissed. 10. At this stage, the learned counsel submits that a non-bailable warrant has been issued to the petitioner. In that view of the matter, while dismissing the petition, I direct the petitioner to appear before the learned Magistrate within a period of two weeks from today and file an ``` CRL.MCNO.3891OF2023 ``` ``` 7 ``` application for recall of warrant and grant of bail. When an application is filed, the same shall be considered, and orders shall be passed on the same day itself. Coercive proceedings, if any, as against the petitioner herein shall be kept in abeyance for a period of two weeks. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.3891OF2023 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 3891/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure1ATRUECOPYOFTHECOMPLAINTDATED08.05.2018 INCC98/2018ONTHEFILESOFTHECONSUMER DISPUTESREDRESSALFORUM,WAYANAD ``` - `Annexure 2 A TRUE COPY OF THE VERSION DATED 14.11.2018 FILED BY THE PETITIONER'S FIRM IN CC 98/2018 ON THE FILES OF THE CONSUMER DISPUTES REDRESSAL FORUM, WAYANAD,` ``` Annexure3ATRUECOPYOFTHEJUDGEMENTDATED21.01.2021 INCC98/2018ONTHEFILESOFTHECONSUMER DISPUTESREDRESSALFORUM,WAYANAD ``` - `Annexure 4 A TRUE COPY OF THE CHEQUE BEARING NO. 743267 DRAWN ON THE ACCOUNT OF THE PETITIONER'S FIRM WITH THE CATHOLIC SYRIAN BANK LTD` ``` Annexure5ATRUECOPYOFTHEDISHONOURMEMODATED 24.04.2018 ``` - `Annexure 6 A TRUE COPY OF THE LEGAL NOTICE DATED 2.5.2018 ISSUED BY THE 2ND RESPONDENT` - `Annexure 7 A TRUE COPY OF THE REPLY LEGAL NOTICE DATED 25-6-2018 ISSUED BY THE PETITIONER` ``` Annexure8THECERTIFIEDCOPYOFTHECOMPLAINTINC.C. NO.803/2022ONTHEFILESOFTHEJUDICIAL MAGISTRATEOFFIRSTCLASS(NIACT)CASES, ERNAKULAM ```