Single Bench dismissed the appellant's petition to quash a cheque bounce case under Section 482 CrPC, holding that defenses regarding debt enforceability must be tried on merits.
Petition to quash the proceedings under Section 138 of the Negotiable Instruments Act was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938
Crl.MC.No. 1262 of 2013
IN ST 436/2013 of J.M.F.C-I, SULTHANBATHERI
PETITIONER/ACCUSED:
K.C.MUSTHAFA ,
S/O.MOIDEEN, KADAVATH CHERIYAPARAMBIL HOUSE PACHATTIRI POST, TIRUR, PIN-676 105.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL) BY PUBLIC PROSECUTOR SMT.V.P. SATHI
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1262 of 2013
APPENDIX
PETITIONER(S)' EXHIBITS
ANNEXURE-A1. THE TRUE COPY OF THE COMPLAINT DATED 24/1/2013 IN ST NO.436/2013 OF JFCM COURT-1, SULTHAN BATHERY.
ANNEXURE-A1I. THE TRUE COPY OF THE RELEVANT PAGES OF THE CHITTY PASS BOOK OF CHITTY NO.DTA.01/15 DATED 30/5/2011.
ANNEXURE-AII. THE TRUE COPY OF THE LAWYER NOTICE DATED 26/11/2012.
ANNEXURE-A1V. THE TRUE COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONER DATED 8/12/2013.
ANNEXURE-AV. THE TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 10/1/2013.
ANNEXURE-AVI. THE TRUE COPY OF THE RECEIPT ISSUED BY THE MANAGER OF TIRUR BRANCH OF DHANAKODI CHITS DATED 26/2/2013.
ANNEXURE-AVI1. THE TRUE COPY OF THE SUMMONS ISSUED BY JFCM COURT-1, SULTHAN BATHERY DTED 1/3/2013 IN ST NO.436/2013 ON ITS FILE.
//True Copy//
P.S.To Judge
RAJA VIJAYARAGHAVAN.V., J
ORDER
Crl.M.C.1262/13
2
3.The learned counsel would submit that the alleged debt is not legally enforceable. Relying on receipts which were produced as Annexure A-II, it was contended by the learned counsel, that the petitioner had been paying the amount without fail and in view of the same, the complaint was prematurely instituted. It is further pointed out on the strength of
an undated copy of letter issued by one Showkhathali, that a sum of Rs 10000/- was accepted from the petitioner towards part payment after issuance of the cheque and if that be the case , the complaint is not maintainable as held by this Court in John .G. V Aloysious and Another ( 2010 (2) KHC 705 ) . It is also submitted that the cheque was issued by way of security and therefore, cannot have been issued in discharge of a legally enforceable debt .
4.Refuting the contentions of the learned counsel , the
Crl.M.C.1262/13
3
learned counsel appearing for the 2nd respondent would submit that these are grounds which are to be raised before the learned Magistrate. It was contended by the learned Counsel that the petitioner has no case that the complaint has to fail on any fundamental defect, but on the other hand, his case is based on materials, the authenticity of which is doubtful.
5.As already noted herein before, there is clear allegation in the complaint that the cheque was issued in discharge of a legally enforceable debt. The petitioner has no case that there is non compliance of any of the mandatory provisions in the statute. I am afraid that the contentions touching the various defences available to the petitioner are matters that are to be considered by the trial court and it is for the learned Magistrate to consider the said contentions on its merits .
Crl.M.C.1262/13
4
6.The scope and ambit of powers of the High Court under Section 482 of the Code has been enunciated and reiterated by the Apex Court in a series of decisions and the various circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, it is unnecessary to burden the judgment by making reference to all the decisions on the point. It would be suffice to state that though the powers possessed by the High Courts under the said provision are very wide, It can only be exercised in appropriate cases, ex debito justitiae , to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the
Crl.M.C.1262/13
5
basis of material on record, that allowing the proceedings to continue, would be an abuse of the process of Court or that the ends of justice require that the proceedings ought to be quashed.
extraordinary powers to quash the proceedings.
Crl.M.C is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN.V.
Judge
Mrcs/22.3.2016
//True Copy//
P.S.To Judge
1 issue framed by the court
Whether High Court can invoke powers under section 482 CrPC to quash sections 138 NI Act proceedings.
Colour shows how this judgement treated each authority
John G V Aloysious and AnotherReferred¶3
John .G. V Aloysious and Another ( 2010 (2) KHC 705 )
2 provisions across 2 enactments
K C Musthafa
State of Kerala
Dhanakodi Chits Pvt Ltd
Raja Vijayaraghavan V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Raja Vijayaraghavan V
Parties & counsel
