Dismissed

Krishnakumar a., v. the State of Kerala

Kerala HC3 Sept 2019Crl.MC/6238/2019

Case brief

AI extract

What is this about?

The Kerala High Court rejected a petition to quash criminal proceedings under Section 138 of the Negotiable Instruments Act. The petitioner argued the cheque was not drawn from his account and the bounce memo did not specify insufficiency of funds. The court held these disputes must be resolved during trial and are inadequate grounds to quash proceedings under Section 482 Cr.P.C.

What did the court decide?

Petition to quash proceedings in C.C.No.945/2017 was dismissed.

Krishnakumar a., Vs the State of Kerala — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941

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Crl.MC.No.6238 OF 2019(H)

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IN CC 945/2017 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT XII, THIRUVANANTHAPURAM

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PETITIONER/ACCUSED:

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KRISHNAKUMAR A., AGED 66 YEARS S/O.ACHUTHAN NAIR, RESIDING AT REVATHY, VELLAYAMBALAM, SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695 010.

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BY ADVS.

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SRI.S.JUSTUS SRI.U.V.DEEPU

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

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2 USHA JANARDHANAN, W/O.LATE JANARDHANAN, AGED 41 YEARS, KAILAS, T.C.28/246(1), OTTUKAL STREET, KAITHAMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, PIN - 695 024.

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OTHER PRESENT:

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SR.PP.C.N.PRABHAKARAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.6238 OF 2019(H) 2

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O R D E R

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Dated this the 3rd day of September 2019

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In the petition on hand the petitioner seeks to quash all proceedings in C.C.No.945/2017, a prosecution pending on the files of Judicial First Class Magistrate Court XII, Thiruvananthapuram (for short 'the trial court') preferred by the 2^nd respondent under Section 142 of Negotiable Instruments Act, 1881 (for short 'N.I Act'). A copy of the complaint is produced alongwith the petition on hand as Annexure A1. Petitioner is the accused in the prosecution.

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The contention of Sri.S.Justus, the learned counsel for the petitioner was that C.C.No.945/2017 is a prosecution launched by the petitioner under Section 142 of N.I Act alleging commission by the 2^nd respondent of an offence punishable under Section 138 N.I Act. According to him the disputed cheque which formed the basis for the prosecution was not issued from an account maintained by the petitioner. According to him, the petitioner is not maintaining an account in Dhanalakshmi Bank, Sasthamangalam Branch wherefrom the disputed cheque was drawn. It was specifically stated in the

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Crl.MC.No.6238 OF 2019(H) 3

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reply notice that he is not maintaining an account with Dhanalakshmi Bank, Sasthamangalam Branch wherefrom the disputed cheque was drawn. According to the learned counsel, the cheque was drawn from the account maintained by some other person with the bank and therefore the proceedings initiated as C.C.No.945/2017 by the 2^nd respondent on it's basis and is pending before the trial court will not sustain and seeking to quash the same, the petition on hand is preferred.

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Secondly, it was urged by the learned counsel that in the memo issued from the bank to inform about the bouncing of the disputed cheque, the reason stated for not encashing it was “other reasons”. According to him, since the reason was stated as “other reasons”, the cheque was not bounced for 'insufficiency of funds' or “exceeds arrangement” or like reasons based on which a prosecution under Section 142 N.I Act will sustain. According to him, the complaint filed as Annexure A1 and is pending on the files of the trial court as C.C.No.945/2017 and proceedings initiated thereunder are liable to be quashed.

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As already stated, the copies of the complaint, cheque, memo of dishonour and the notice issued were produced alongwith the petition on hand. The learned counsel

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Crl.MC.No.6238 OF 2019(H) 4

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had already drawn attention of this Court to paragraph 3 of the complaint wherein it was alleged that the cheque was returned for the reason “payment stopped by the drawer”. It is also stated that a memo to the effect was received by the complainant on 18.2.2017. It is contended by the learned counsel that since the cheque was pleaded as bounced for the reason 'payment stopped by the drawer', the complainant himself has no case that the cheque was dishonoured for insufficiency of funds or other reasons for which a prosecution is maintainable under Section 142 N.I Act. But this Court has noticed on a perusal of Annexure A3, which was the return memo report issued from the bank, that the cheque was endorsed as bounced for 'other reasons'. It is not stated in Annexure A3 that the cheque was bounced for the reason, 'the payment was stopped by the drawer'. What are the 'other reasons' intended by the bank while issuing Annexure A3 is not known. It could only be brought out in evidence during trial on examining the Branch Manager of Dhanalakshmi Bank Ltd., Atpar Branch.

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It is true that in Annexure A5 reply notice, it has been stated by the petitioner that the disputed cheque was not issued from an account maintained by him with Dhanalakshmi

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Crl.MC.No.6238 OF 2019(H) 5

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Bank, Sasthamangalam Branch. But this Court cannot act upon to quash the proceedings on the basis of such a statement made by the petitioner himself in the reply notice. Annexure A2 is the copy of the disputed cheque and it cannot be gathered from it's face that it was drawn from an account maintained by a person other than the petitioner. Similar is the situation with Annexure A3, return memo report issued from the bank which also did not refer that the disputed cheque was issued from an account maintained by any person other than the petitioner.

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These matters could only be established during trial. If established successfully in trial, the petitioner may defeat the prosecution. For exercising jurisdiction under Section 482 Cr.P.C, these matters are inadequate to grant the relief sought by the petitioner.

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In the result, the Crl.M.C stands dismissed.

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Sd/- MARY JOSEPH JUDGE

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Crl.MC.No.6238 OF 2019(H) 6

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF COMPLAINT DATED 20/04/2017 FILED BY THE SECOND RESPONDENT. ANNEXURE A2 CERTIFIED COPY OF CHEQUE BEARING NUMBER BEARING NO.008762 DATED 5/01/2017. ANNEXURE A3 CERTIFIED COPY OF DISHONOR MEMO REPORT DATED 18/02/2017. ANNEXURE A4 CERTIFIED COPY OF LEGAL NOTICE DATED 6/03/2017 ISSUED ON BEHALF OF SECOND RESPONDENT. ANNEXURE A5 CERTIFIED COPY OF THE REPLY NOTICE DATED 10/03/2017 SENT BY THE PETITIONER TO ANNEXURE A4 LEGAL NOTICE.

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RESPONDENTS EXHIBITS: NIL

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//TRUE COPY//

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P.A TO JUDGE

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Krishnakumar a., v. the State of Kerala

Case brief

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Krishnakumar a., v. the State of Kerala

Case brief

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