Allowed

Siby K.Thomas v. T.G.Gopalan

Kerala HC18 Jan 2010Crl.MC/1841/2009

Case brief

AI extract

What is this about?

The High Court allowed a criminal miscellaneous petition to quash proceedings under the IPC for cheating and forgery, and Section 138 of the Negotiable Instruments Act. The petitioner was the first accused in the underlying complaint. The Court held that since prior final civil and criminal judgments by the same High Court had confirmed the genuineness of the disputed agreement and cheque, the Mag

What did the court decide?

Criminal miscellaneous case No.1841 of 2009 and criminal case No.1401/2009 against the petitioner were quashed.

Siby K.Thomas Vs T.G.Gopalan — Cheque Dishonour | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931

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Crl.MC.No. 1841 of 2009(E) -------------------------------------CC.NO.1401/2009 OF ADDL.CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM.

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PETITIONER/1ST ACCUSED:

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-----------------------------------------

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SIBY.K.THOMAS, S/O.P.C.THOMAS, AGED 55 YEARS, 603-C, VRINDAVAN APARTMENTS, VYTTILA, KOCHI-682 019, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS. MR.M.A.ABDUL HAKHIM, MR.JYOTHISH.J.KALLINGAL.

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RESPONDENTS/COMPLAINANT, ACCUSED NOS. 2 TO 5 & STATE:

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----------------------------------------------------------------------------------------------

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1. T.G.GOPALAN, S/O.LATE GOVINDAN, AGED 77 YEARS, RESIDING AT `VENUS' KACHAPPILLY ROAD, VYTTILA, KOCHI-682 019, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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2. REJI MATHEW, S/O.A.P.MATHACHAN, AGED 42 YEARS, R.M.FINANCE, YASURA ESTATE, GOPALAPRABHU ROAD, KOCHI-682 035, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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3. A.P.MATHACHAN, S/O.KURUVILLA POULOSE, AGED 67 YEARS, ARAKKAL HOUSE, VATTAKKUNAM EAST, PALACE SQUARE, CHOTTANIKKARA-682 312, KANAYANNUR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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4. GEORGE JOSEPH, S/O.JOSEPH, AGED 52 YEARS, PARAYIL HOUSE, 34/195-A, PADIVATTOM, EDAPPALLY-682 024, EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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CRL.M.C. NO.1841/2009-E:

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5. A.J.XAVIER, S/O.JOSEPH, AGED 57 YEARS, AYATHUPARAMBIL, MARADU-682 304, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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6. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R6 BY PUBLIC PROSECUTOR MR. P.A. SALIM, R1 BY ADVS. MR.M.N.MATHEW, MR.THOMAS T.VARGHESE.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/01/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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M.SASIDHARAN NAMBIAR,J.

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Crl.M.C.NO.1841 OF 2009 ------------------------------------------ Dated 18^th January 2010

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O R D E R

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Petitioner is the first accused in

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C.C.1401/2009 on the file of Additional Chief Judicial Magistrate's court, Ernakulam taken cognizance for the offences under Sections 406, 420, 467, 468 and 471 read with Section 34 of Indian Penal Code against five accused. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-A7 complaint filed by the first respondent against him contending that it is only an abuse of process of the court. Contentions in Annexure-A7 complaint is that all the accused are private financiers and money lenders and in the money

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Crmc 1841/09

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transaction, for security of loan obtained by the first respondent, signed blank stamp papers and signed blank cheque leaves of the wife of the petitioner were handed over to the accused and they fabricated the stamp papers into agreement for sale and blank cheque as cheque issued by the wife of the first respondent and instituted O.S.358/1997

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before Sub court, Ernakulam, a suit for specific performance of the agreement for sale on the strength of Annexure-A1 agreement for

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sale and after presenting the cheque and getting it dishonoured, instituted a

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complaint alleging that wife of the first respondent committed an offence under Section 138 of Negotiable Instruments Act and thereby used the fabricated agreement for sale as

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well as the dishonoured cheque as genuine by

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Crmc 1841/09

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instituting O.S.358/1997 and C.C.520/1998 before Judicial First Class Magistrate-I, Kochi and thereby committed offences under Sections 420, 467, 468 and 471 read with Section 34 of Indian Penal Code. In Annexure-

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A7 complaint, it is also alleged that cheque involved in C.C.520/1998 was in fact handed

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over to the second accused from whom petitioner obtained the same.

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Case of the petitioner is that by

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Annexure-A2 judgment, which was confirmed by Annexure-A3 judgment in A.S.299/2002 civil courts have already concluded that Annexure-

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A1 agreement for sale is genuine and endorsements on the reverse side of the

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agreement for sale were made by the wife of

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the first respondent after receiving part of the consideration shown therein and therefore,

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Crmc 1841/09

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learned Magistrate could not have taken cognizance of the offences under Sections 406, 420, 468 and 471 either on the allegation that Annexure-A1 agreement is fabricated or the acknowledgment/endorsement on the reverse side of the agreement for sale are fabricated or forged and therefore, cognizance taken is bad. Learned counsel appearing for the petitioner also pointed out that question whether dishonoured cheque was genuine or not was also considered by the Magistrate in C.C.520/1998 and though learned Magistrate found that no offence under Section 138 of

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Negotiable Instruments Act was attracted, this court by Annexure-A5 judgment in the appeal filed by the petitioner set aside the findings of the learned Magistrate and found that the dishonoured cheque was issued by the

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Crmc 1841/09

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wife of the first respondent and it is not a fabricated or forged cheque and wife of the first respondent was convicted and sentenced to undergo imprisonment till rising of court and compensation and thereafter wife of first respondent filed an application before this court undertaking that she will pay the compensation as directed under Annexure-A5 judgment and by Annexure-A6 order this court enlarged the time and in such circumstances, learned Magistrate could not have taken

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cognizance of the offences based on the dishonoured cheque also and therefore, the cognizance taken and the proceedings pending before the learned Magistrate is an abuse of process of the court and is to be quashed.

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Learned counsel appearing for the

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first respondent argued that though dispute

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Crmc 1841/09

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with regard to Annexure-A1 agreement for sale

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has become final, on the failure of the wife of first respondent to challenge Annexure-A3 judgment of this court steps have been taken to challenge Annexure-A5 judgment in C.C.520/1998 before the Apex court and hence based on the findings in Annexure-A5 judgment the case cannot be quashed. Learned counsel also argued that though wife of the first respondent had filed an application before the learned Magistrate to send the dishonoured cheque to an expert, that fact was omitted to be taken note of by this court, while finding

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that the genuineness of the dishonoured cheque was not disputed and as Annexure-A5 judgment is being challenged and the learned Magistrate had taken cognizance of the offence on perusing the dishonoured cheque, the

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Crmc 1841/09

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cognizance taken cannot be quashed. Learned counsel appearing for the first respondent also argued that there are sufficient allegations in Annexure-A7 complaint to attract the ingredients of the offences and therefore, cognizance taken can only be upheld.

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Annexure-A7 complaint shows that

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allegations against the petitioner are that petitioner fabricated Annexure-A1 agreement for sale along with the

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endorsement/acknowledgments seen on the reverse side of Annexure-A1 agreement, evidencing the payment of part of

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consideration subsequent to execution of the agreement for sale are fabricated and not genuine. The other allegation is with respect to the cheque, which is the subject matter of

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Crmc 1841/09

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C.C.520/1998. What is contended in Annexure-A7 complaint is that a signed blank cheque was handed over to the second accused, from whom petitioner obtained it and after fabricating the entries, made it appear as a cheque issued by the wife of the first respondent and then presented it for encashment and after getting it dishonoured, as if it is a genuine cheque lodged a complaint and got the wife of first respondent convicted and therefore, the offences are committed.

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Annexures-A2 and A3 judgments of the Sub court and this court in the appeal against Annexure-A2 establish that when the petitioner instituted O.S.358/1997 before Sub court, Ernakulam for specific performance of Annexure-A1 agreement for sale, fact that agreement for sale was executed was not

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Crmc 1841/09

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denied by the wife of the first respondent. Written statement, as is clear from Annexure-

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A2 judgment shows that the stand taken by the wife of the first respondent was that, though an agreement for sale was executed, it was executed at the instance of the petitioner and was never intended to be acted upon as an agreement for sale and was executed only as a security for the loan obtained by her

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husband. It shows that the defence was that wife of the first respondent towards security,

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had entrusted two signed blank cheques to the petitioner. Annexure-A5 judgment of this court also shows that when wife of the first respondent was prosecuted, she had no case that the dishonoured cheque was a signed blank cheque handed over to the second accused and instead the very same contention taken

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Crmc 1841/09

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earlier in the written statement in

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O.S.358/1997 was re-iterated. By Annexure-A2 judgment trial court found that Annexure-A1

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agreement for sale as well as the

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acknowledgments and endorsements therein are

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all genuine. This court by Annexure-A3

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judgment, though found that petitioner is not entitled to get the discretionary relief of specific performance of the agreement for sale, did not find that the agreement for sale was not genuine or that the

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endorsements/acknowledgments are not genuine. On the other hand, findings of the trial court

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on those aspects were confirmed. In the light of those findings which has admittedly become

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final, even wife of the first respondent is

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not entitled to contend either that Annexure-

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A1 agreement for sale is not genuine or

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Crmc 1841/09

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endorsements/acknowledgments in respect of

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receipt of parts of the consideration, subsequent to the execution of agreement for sale are not genuine. Therefore, though first respondent contended in Annexure-A7 complaint that Annexure-A1 agreement for sale as well as acknowledgments/endorsements made therein are fabricated, in the light of the findings in Annexure-A2 and Annexure-A3 judgments, learned Magistrate cannot take cognizance of the offences based on Annexure-A1 agreement.

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Then the question is with regard

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to the dishonoured cheque. True, Annexure-A7 complaint shows that according to the husband of the drawer of the cheque, the cheque was handed over to the second accused as a signed blank cheque towards security of a loan. But

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the drawer herself had contended before the

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Crmc 1841/09

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civil court in O.S.358/1997 that the cheque

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was handed over by her to the petitioner, as a signed blank cheque towards security of a loan. Though learned counsel appearing for first respondent submitted that there is no specific admission that the dishonoured cheques involved in C.C.520/1998 is one of the signed blank cheques handed over as admitted

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in the written statement, if there are two blank cheques handed over by the wife of first respondent to the petitioner with him, I do not find any necessity for the petitioner to fabricate the cheque which was handed over

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to the second respondent. Therefore, the said contention can only be rejected.

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Though it is contended in

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Annexure-A7 complaint that the dishonoured

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cheque was only signed and was a blank cheque

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Crmc 1841/09

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and by filling up the cheque and presenting it for encashment and thereafter lodging a complaint alleging an offence under Section 138 of Negotiable Instruments Act, offences are committed, in view of the findings of this

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court in Annexure-A5 judgment, so long as that judgment is not set aside by the Apex

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Court, learned Magistrate cannot take cognizance of the offence. This court found that the dishonoured cheque is a genuine cheque executed and issued by the wife of first respondent and there was no

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manipulation or forgery therein. Even though first respondent would submit that steps are taken to challenge the findings in Annexure-A5 judgment before the Apex court, admittedly Annexure-A5 judgment dated 3/12/2007 till now

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is not set aside. There is also no material to

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Crmc 1841/09

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show that any a proceeding is pending challenging Annexure-A5 judgment. In such circumstances, unless Annexure-A5 is set aside, learned Magistrate cannot take cognizance of the offences on the dishonoured cheque also. In such circumstances, continuation of the proceedings as against the petitioner is only an abuse of process of the court and to secure justice, it is necessary to quash the same.

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Petition is allowed. C.C.1401/2009 on the file of Additional Chief Judicial

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Magistrate's court, Ernakulam, as against the petitioner, is quashed.

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M.SASIDHARAN NAMBIAR, JUDGE.

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uj.

Siby K.Thomas v. T.G.Gopalan

Case brief

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Siby K.Thomas v. T.G.Gopalan

Case brief

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