Allowed

Babu George,S/O.Late George Mathew v. Muthoor Bankers(Thiruvalla)

Kerala HC23 Mar 2016Crl.MC/2483/2013

Case brief

AI extract

What is this about?

In S.T.35/2009 involving a cheque dishonour case, the High Court of Kerala exercised its inherent jurisdiction under Section 482 CrPC to quash the complaint and trial proceedings. The court held that uncontroverted averments in a pending civil plaint established the petitioner was merely a legal heir and not responsible for the company's business, making the criminal prosecution an abuse of proces

What did the court decide?

Criminal MCP.No. 2483 of 2013 and all further proceedings as against the petitioner in S.T.No. 35 of 2009 were quashed.

Babu George,S/O.Late George Mathew Vs Muthoor… — Cheque Dishonour | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

WEDNESDAY, THE 23RD DAY OF MARCH 2016/ 3RD CHAITHRA, 1938

¶5

Crl.MC.No. 2483 of 2013

¶6

ST 35/2009 of J.M.F.C. - IV, ERNAKULAM

¶7

PETITIONER(S):

¶8

BABU GEORGE, AGED 37 YEARS, S/O.LATE GEORGE MATHEW (DESCRIBED AS SHAJI GEORGE IN ST NO.35/2009 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT IV, ERNAKULAM, S/O.LATE GEORGE MATHEW), PONNAMKUZHY HOUSE, KURUVAMVZHY P.O., ERUMELLY, KOTTAYAM DISTRICT.

¶9

BY ADVS. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI

¶10

SMT.REENA THOMAS

¶11

RESPONDENT(S):

¶12

MUTHOOT BANKERS (THIRUVALLA), MUTHOOT BUILDING, M.G.ROAD, ERNAKULAM REP.BY ITS MANAGER AND PRESENT POWER OF ATTORNEY HOLDER SRI.A.F.JOSE, S/O.FRANCIS.

¶13

BY SRI.MILLU DANDAPANI

¶14

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

Crl.MC.No. 2483 of 2013

¶16

APPENDIX

¶17

PETITIONER(S)' EXHIBITS

¶18

ANNEXURE-A1: CERTIFIED COPY OF COMPLAINT IN ST NO.35/09 OF JFCM IV, ERNAKULAM.

¶19

ANNEXURE-A2: CERTIFIED COPY OF PLAINT IN O.S.NO.462/2003 OF SUB COURT, ERNAKULAM.

¶20

ANNEXURE-A3: TRUE COPY OF THE DEATH CERTIFICATE DATED 2.12.2000.

¶21

//True Copy//

¶22

P.S.To Judge

¶23

RAJA VIJAYARAGHAVAN.V., J

¶24

- - - - Crl.M.C.2483 of 2013

¶25

- - - - Dated 23^rd March, 2016

¶26

¶27

ORDER

¶28

1.The 4^th accused in S.T.35 of 2009 on the file of

¶29

the Judicial Magistrate of First Class-IV, Ernakulam, has filed this petition under Section 482 of the Code of Criminal Procedure seeking to

¶30

quash Annexure A-1 complaint and all consequential proceedings.

¶31

2.Case of the respondent as is discernible from the complaint filed, is as follows:-

¶32

The 1^st accused is a company registered under the Companies Act and accused No. 2 is its Managing Director. The accused Nos. 2 to 12 are in charge of the affairs of the 1^st accused company and are responsible for the conduct of its business. The accused had availed financial facility from the complainant, which is a

¶33

Crl.M.C.2483/13

¶34

¶35

partnership firm. In partial discharge of the said debt, accused Nos. 2 and 3 had issued a cheque dated 18.2.2003 for a sum of RS 67,34,025/-

¶36

drawn at the State Bank of Travancore , Kumili Branch. The cheque was dishonored on presentation and after compliance with the statutory formalities prosecution was launched against the company and its directors under section 138 of the Negotiable Instruments Act . It is also asserted in the complaint that the offence

¶37

was committed with the full knowledge and connivance of the directors which include the petitioner herein.

¶38

3.The learned counsel appearing for the petitioner

¶39

has submitted that the petitioner had nothing to do with the 1^st accused company and he is only the son of one of the erstwhile directors of the company. There is incontrovertible material in

¶40

Crl.M.C.2483/13

¶41

¶42

the form of Annexure-A2 plaint filed by the complainant before the Sub Court at Ernakulam. There is reference in the plaint to late Sri. George Mathew, the father of the petitioner. According to the learned counsel, a perusal of the plaint would reveal that the petitioner, his mother and sister were arrayed as defendants in the suit in their capacity as legal heirs of late George Mathew on the sole premise that they had inherited the assets of the deceased. The learned counsel also referred to para 7 of the Plaint wherein it has been stated by the respondent in an unequivocal manner, that the loan was availed by defendants 1 to 6 along with late George Mathew, the father of the petitioner herein. According to the learned Counsel, list of documents appended to the plaint would also reveal that notice was issued to George Mathew and the same was returned with

¶43

Crl.M.C.2483/13

¶44

¶45

the endorsement “addressee expired”. This was on 1.8.2003, much after filing of Annexure - A1 complaint. This aspect is emphasized by the learned counsel to contend that the roping in of the petitioner and his family members is clearly a case of arm twisting without the sanction of law. According to the learned counsel, in view of the above unassailable assertions, the prosecution of the petitioner is a clear abuse of process of law. The petitioner could never have been responsible for the conduct of business of the company at the relevant time and forcing the petitioner to stand for trial and to undergo protracted legal process, would be nothing but a travesty of justice.

¶46

4.On the other hand, the learned counsel appearing

¶47

for the respondent submitted that necessary averments have been alleged in Annexure-A1

¶48

Crl.M.C.2483/13

¶49

¶50

complaint that the petitioner is also one of the directors of the Company. Referring to para 3 of the complaint, the learned counsel appearing for the respondent would submit that there are specific allegations that the petitioner herein is also is in charge and responsible for the day-today conduct of the business of the Company and it has also been averred that the cheque was issued with his full knowledge and connivance. The learned counsel appearing for the respondent, however, had no answer to the specific averments made by the respondent in Annexure-A2 which is the Plaint filed by the respondent before the Sub Court, Ernakulam, on 23.8.2003 wherein it has been specifically averred that the petitioner has been roped in only because he is one of the legal heirs of late George Mathew.

¶51

Crl.M.C.2483/13

¶52

¶53

5.I have considered the rival submissions and have

¶54

perused the documents.

¶55

6.Annexure - A2 is the plaint filed by the respondent before the Court of the Subordinate Judge Ernakulam. The petitioner herein is arrayed as the 8^th defendant in the said suit . The said suit has been filed for realization of the amount covered under the same cheque which is the subject matter in Anneuxre - A1 complaint as well.

¶56

7.In para No 2 of the plaint it has been averred by the respondent as follows :

¶57

“Defendants 7 to 9 are the legal heirs of late George Mathew who was also one of the directors of the 1^st defendant company. The Defendants are doing business in marketing of cardamom etc. the defendants 1 to 6 and other directors along with late George Mathew approached the plaintiff requesting for financial assistance for their business purpose”.

¶58

Crl.M.C.2483/13

¶59

¶60

8.In para 3 of the plaint it is stated thus :-

¶61

“Defendants Nos. 2 to 6 and late George Mathew have executed personal guarantee in favour of the plaintiff whereby they guaranteed prompt repayment of the loan amount with interest and other charges.”

¶62

9.In para 4 it is averred as follows :-

¶63

“Contrary to the terms and conditions as well as the assurances given by the defendants 1 to 6 and late George Mathew, the defendants defaulted repayment of the loan amount to the plaintiff. When the plaintiff made demand for regularization of the account, the defendants 2 to 6 approached the plaintiff and had discussion with Sri.Thomas George Muthoot, regarding settlement of the dues.”

¶64

10.In para 5 of the plaint it is averred as follows:-

¶65

Crl.M.C.2483/13

¶66

¶67

“Plaintiff also issued lawyers notice dated 1.8.2003 to the defendants calling upon them to make payment of the outstanding dues. Despite the demands, the defendants have not discharged their dues to the plaintiff. Lawyers' notice issued to late George Mathew was returned with endorsement “expired”. On enquiry made by the plaintiff, it is revealed that defendants 7 to 9 are the widow and childrent of late George Mathew and they have inherited the assets of late George Mathew upon his demise.”

¶68

11.In para 6 it is stated thus :-

¶69

“The loan was availed by the defendants 1 to 6 along with late George Mathew for their business”.

¶70

The liability of defendants 7 to 9 are limited to the extent they inherited the assets from late George Mathew” .

¶71

12.It is fairly settled by now that while exercising

¶72

inherent jurisdiction under Section 482 of the Code in a case where complaint is sought to be quashed, it will be unwarranted for the High

¶73

Crl.M.C.2483/13

¶74

¶75

Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in the instant case, if the pleadings of the respondent in a properly instituted suit in respect of the same subject matter and pending consideration of the Civil Court, the contents of which are beyond suspicion and undisputed by the respondent, the accusations against the petitioner cannot stand, it would be travesty of justice to relegate the accused to face trial and to prove his defence in the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, this Court can look into the materials which have a significant bearing on the matter at prima facie stage and render justice.

¶76

13.In Harshendra Kumar D. v. Rebatilata Koley

¶77

Crl.M.C.2483/13

¶78

¶79

(2011 (3) SCC 351), the Apex Court while considering the powers under Section 482 of the Code had observed thus:-

¶80

“In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt-placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the

¶81

Crl.M.C.2483/13

¶82

¶83

trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have a significant bearing on the matter at prima facie stage.”

¶84

14.Further, in Gulati D.P. , Manager Accounts ,

¶85

M/s Jetking Infotrain Ltd v. State of Uttar Pradesh and Another (AIR 2015 SC 3760) : (2015 (1) KLD 869) , the Apex Court had occasion to lay down the object of exercise of power under section 482 of the Code to prevent abuse of process of law as follows :

¶86

[7]. We have carefully considered the rival submissions made before us. From bare perusal of S.482 of the Code, it is clear that the object of exercise of power under the Section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar and Others v. Madan Lai Kapoor, 2013 KHC 4066 : 2013 (3) SCC 330 : 2013 (1) KHC SN 39 : 2013 (1) KLD 439 : 2013 (1) SCALE 665 : 2013 CriLJ 1272 : 2013 (3) SCC (Cri) 158 : 2013 (2) Cal LT 48, this Court has enumerated

¶87

Crl.M.C.2483/13

¶88

¶89

the steps required to be followed before invoking inherent jurisdiction by the High Court under S.482 of the Code as under: Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under S.482 CrPC:

¶90

1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

¶91

2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

¶92

3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution / complainant; and / or the material is such that it cannot be justifiably refuted by the prosecution / complainant?

¶93

4. Step four: whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice?

¶94

5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of: power vested in it under S.482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious Court time,

¶95

Crl.M.C.2483/13

¶96

¶97

which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

¶98

15.A reading of Annexure-A2 plaint and its averments will make it unmistakably clear that as on date of issuance of the cheque, the petitioners had absolutely nothing to do with the transaction that was entered into by the respondent with the Company. The assertion that they were directors and were in charge and responsible for the day to day conduct of the business at the time of issuance of the cheque, are all falsified by the uncontroverted averments in the plaint. The respondent cannot be heard to contend that the plaint filed before the Court of the Subordinate Judge should be ignored. I consider the plaint produced by the petitioner to be indubitable and the averments would rule out the assertions in

¶99

Crl.M.C.2483/13

¶100

¶101

the complaint. The respondent has not been able to refute or for that matter they cannot refute the assertions in the plaint. If that be the case, conclusion is inescapable that the continuance of the proceedings would result in abuse of process of the Court and would not serve the ends of justice.

¶102

16.As held by the Apex Court in Pooja Ravinder Devidasani V State of Maharashtra and Another (AIR 2015 SC 675) , putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and Courts cannot be a mere spectator to it.

¶103