Accused challenged complaint u/s 138 NI Act by filing Crl.MC u/s 482 Cr.P.C. contended cheque issued as security not debt discharge. Bench cited precedents denying High Court intervention on factual disputes. Dismissed Crl.MC.
Crl.M.C. prayer for quashing of complaint withdrawn.
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 B.SUDHEENDRA KUMAR
MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939
Crl.MC.No. 1618 of 2018
ST 1450/2017 of J.M.F.C.,VADAKKANCHERRY
PETITIONER(S)/ACCUSED
IBRAHHIM NAZAR S/O. SULAIMAN, VAZHAPPILLY HOUSE, AKKAMALA DESOM, ENAKKAD VILLAGE, THALAPPILLY TALUK.
BY ADV.SRI.C.P.UDAYABHANU
RESPONDENT(S)/DE FACTO COMPLAINANT & STATE:
THALAPPILLY TALUK.
R2 BY PUBLIC PROSECUTOR, SHRI E C BINEESH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1618 of 2018 ()
APPENDIX
PETITIONER(S)' EXHIBITS
| ANNEXURE A1: | CERTIFIED COPY OF THE COMPLAINT IN ST NO 1450/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY DATED 4/4/2017. |
|---|---|
| ANNEXURE A1: | A TRUE COPY OF THE ORDER OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY TAKING COGNIZANCE OF CMP NO. 3725/2017 AS ST NO. 1450/2017. |
| ANNEXURE A2: | TRUE COPY OF AGREEMENT FOR SALE DATED 30/9/2016. |
| ANNEXURE A3 : | TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE ACCUSED TO THE COMPLAINANT DATED 3/2/2017. |
| ANNEXURE A4 : | TRUE COPY OF THE ORDERS IN IA NO. 813/2017 IN OS NO. 189/2017 ON THE FILES OF THE MUNSIFF COURT, WADAKKANCHERRY DATED 24/5/2017. |
| ANNEXURE A5: | TRUE COPY OF THE PLAINT IN OS NO. 69/2017 ON THE FILES OF THE SUBORDINATE JUDGES COURT, THRISSUR DATED 4/4/17. |
| ANNEXURE A6 : | TRUE COPY OF THE LAWYERS NOTICE DATED 16/5/2017 ISSUED TO THE ACCUSED BY THE COUNSEL FOR THE COMPLAINANT IN RESPECT OF ANOTHER CHEQUE. |
RESPONDENTS EXHIBTS : NIL
B.SUDHEENDRA KUMAR, J.
O R D E R
The petitioner is the accused in S.T.No.1450 of 2017
on the files of the court of the Judicial Magistrate of First Class, Wadakkancherry. The first respondent herein filed
Annexure-A1 complaint against the petitioner before the court below alleging offence under Section 138 of the Negotiable Intruments Act.
Crl.M.C.1618/2018
-: 2 :-
learned Public Prosecutor.
in question was issued only as a security and the same was not issued in discharge of the existing debt or liability and in the said circumstances, Annexure-A1 complaint cannot
be sustained.
Crl.M.C.1618/2018
-: 3 :-
further observed that the High Court should not express its view on the disputed question of fact in a petition under Section 482 Cr.P.C., to come to a conclusion that the offence is not made out. The Apex Court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016(4) KLT 24] held that the crucial question to determine the applicability under Section 138 of the N.I. Act is whether the cheque represents the discharge of existing enforcable debt or liability or whether it represents advance payment without there being subsisting debt or liability.
Crl.M.C.1618/2018
-: 4 :-
whether there was enforcable debt or liability as on the date of presentation of the cheque is a matter for evidence and hence, the same cannot be adjudicated in this Crl.M.C. filed under Section 482 Cr.P.C. No other argument has been advanced before me by the learned counsel for the petitioner to assail Annexure-A1 complaint. Having gone through the relevant inputs, I am satisfied that AnnexureA1 complaint primafacie discloses the ingredients to constitute the offence under Section 138 of the N.I. Act and in the said circumstances, I find no reason to quash Annexure-A1 complaint as sought for.
In the result, this Crl.M.C. stands dismissed.
sd
B.SUDHEENDRA KUMAR, JUDGE
dl/12.3.18
2 issues framed by the court
Whether High Court can quash complaint under Section 138 NI Act based on factual defence that cheque was issued as security rather than discharge of debt.
Whether disputed facts regarding existence of liability can be adjudicated in proceedings u/s 482 Cr.P.C.
Colour shows how this judgement treated each authority
H.M.T.Watches Ltd. v. M.A. Abida and anotherFollowed¶35
H.M.T.Watches Ltd. v. M.A. Abida and another [2015 (2) KHC 264]
Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd.Followed¶35
Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016(4) KLT 24]
Ibrahhim Nazar S/o. Sulaiman
Valsala Krishnadas W/o. Krishnadas
The State of Kerala
B.Sudheendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
