Partly allowed

M.C.Kuruvila v. M/S.Honkong & Shanghai Banking Corporat

Kerala HC17 Sept 2012Crl.MC/1548/2007

Case brief

AI extract

What is this about?

Single judge dismissed two petitions and allowed one. Held that piecemeal payments towards general bank dues do not discharge a specific cheque-liability unless linked to that cheque. Allowed quashing where payment was made immediately after notice.

What did the court decide?

Proceedings in C.C. No. 247/2006 were quashed. Dismissed petitions in C.C. Nos. 195/2006 and pending cash payment for CC. No. 2716/2007.

M.C.Kuruvila Vs M/S.Honkong & Shanghai Banking Corporat — Cheque Dishonour | Kerala HC (2012)

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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 N.K.BALAKRISHNAN

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MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934

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Crl.MC.No. 1548 of 2007 ( )

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CC.195/2006 of ADDL.C.J.M.(E&O),ERNAKULAM

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PETITIONER(S)/ACCUSED:

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M.C.KURUVILA, MADAPARAMBIL HOUSE, VELLOORKUNNAM, MOOVATTUPUZHA, ERNAKULAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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COMPLAINANT(S)/COMPLAINANT AND STATE:

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1. M/S.HONKONG AND SHANGHAI BANKING

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CORPORATION LTD., REP. BY ITS AUTHORIZED OFFICER

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SANKAR KESAVAN, S/O.P.S.KESAVAN, ASST.MANAGER

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H.S.B.C. LTD., HARBOUR VIEW RESIDENCY, M.G.ROAD

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RAVIPURAM, KOCHI.

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2. THE STATE OF KERALA, REPRESENTED

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BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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ERNAKULAM, KOCHI-31.

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BY ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 BY ADV. SRI.E.M.MURUGAN BY ADV. SRI.PRAVEEN K. JOY BY PUBLIC PROSECUTOR SMT. JASMINE V.H.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-09-2012, ALONG WITH CRL. M.C. NOS. 1553/2007 & 2716/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1548 of 2007 ( )

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APPENDIX

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PETITIONER'S ANNEXURES:

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AA: COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT DATED 24.02.2005 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES), ERNAKULAM.

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AB: COPY OF THE LAWYER NOTICE ISSUED BY MR. VARGHESE KURIAKOSE, ADVOCATE DATED 11.01.2005, ON BEHALF OF THE 1ST RESPONDENT TO THE PETITONER.

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AC SERIES: COPY OF THE CASH RECEIPTS ISSUED BY THE RESPONDENT SHOWING THE PAYMENTS MADE BY THE PETITIONER TO THE RESPONDENT BANK.

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AD: COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONER TO THE COUNSEL FOR THE 1ST RESPONDENT DATED 31.01.2005.

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AE: COPY OF THE ACKNOWLEDGMENT SHOWING THE RECEIPT OF ANNEXURE D REPLY NOTICE BY THE 1ST RESPONDENT.

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RESPONDENT'S ANNEXURES: NIL

//TRUE COPY//

P.A. TO JUDGE

N.K. BALAKRISHNAN, J.

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Crl. M.C. Nos: 1548, 1553 & 2716 of 2007

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Dated this the 17^th day of September, 2012 O R D E R

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The petitioner is the accused in three cases pending before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam. The offence alleged in all these cases is under section 138 of N.I. Act.

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In Criminal M.C. 1548/2007, which is filed to quash C.C. No:195/2006, the cheque in question was for Rs.68,001/-. That cheque was bounced due to insufficiency of funds. Statutory notice was sent, to which reply was sent on 09.01.2005. The contention raised by the petitioner is

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that amount covered by the cheque was paid to the petitioner and thus no amount was due from him. That contention is resisted by the respondent pointing out that huge amount was due from the petitioner to the complainant bank and that piecemeal payments made by the petitioner were towards such liability and not towards

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Crl.M.C. Nos: 1548, 1553, 2716/2007 -2-

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the cheque no:126359 dated 10.11.2004, which was for Rs.68,001/-. Therefore, the contention that C.C. No:195/2006 has to be quashed, cannot be sustained.

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Criminal M.C. No:1553/2007 is directed against the cognizance taken in C.C. No:247/2006. There, the cheque no:126355 for Rs.68,001/- was issued by the accused towards instalment payable by him to the complainant bank. That cheque was also dishonourded on the ground of insufficiency of funds. Statutory notice was sent on 28.12.2004. The learned counsel for the petitioner submits that a sum of Rs.68,000/- was paid by the petitioner to the complainant bank on 29.12.2004 and that fact was mentioned in the reply dated 09.01.2005. The learned counsel for the complainant submits that though the payment was made on 29.12.2004, there is nothing to indicate that the said payment was to discharge the debt covered by the cheque mentioned in that case. It is also submitted that there was a huge amount due from the

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Crl.M.C. Nos: 1548, 1553, 2716/2007 -3-

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accused to the complainant bank so the payment can be legitimately adjusted towards the amount so payable by the accused to the complainant bank. However, since the payment of Rs.68,000/- was made on 29.12.2004, on the next day of the notice dated 28.12.2004, it is reasonable to hold that the said amount was paid towards the debt involved in this case. True, that the said amount does not include the cost of the notice or the interest payable, but since the accused is liable to pay other instalment amount, whatever is deficient can be claimed through their account in respect of the balance amount. Therefore, Criminal M.C. No:1553/2007 can be allowed by quashing the further proceedings in C.C. No:247/2006 of A.C.J.M. (Economic Offences) Ernakulam.

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In Crl. M.C. No:2716/2007, the two cheques for Rs.7,662/- each, bearing nos:383732 and 383731, were issued by the accused to the complainant. The cheques were dishonoured. Statutory formalities were complied

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Crl.M.C. Nos: 1548, 1553, 2716/2007 -4-

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with. Admittedly the amount covered by those cheques were not paid within the time prescribed. If the petitioner wants to avoid prosecution he can do so by paying the cheque amount, due to the complainant, with interest and cost, which the complainant may be readily agreeable to accept. So Criminal M.C. No:2716/2007 cannot be allowed.

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In the result Criminal M.C. No: 1553/2007 is allowed. Further proceedings in C.C. No:247/2006 of Additional Chief Judicial Magistrate (Economic Offences) Ernakulam will stand quashed. The other two petitions (Criminal M.C. Nos: 1548/2007 and 2716/2007) are dismissed.

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Sd/N.K. BALAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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jjj

M.C.Kuruvila v. M/S.Honkong & Shanghai Banking Corporat

Case brief

What is this about?

What did the court decide?

M.C.Kuruvila v. M/S.Honkong & Shanghai Banking Corporat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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