Petitioners sought quashing of a chequedishonour complaint under Section 482 Cr.P.C. arguing the cheque was for an unfulfilled service agreement and thus lacked legally enforceable debt. Court found merit in respondent counsel argument.
Liberty to petitioners to agitate contentions on evidence,
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 A. BADHARUDEEN
THURSDAY, THE 20TH DAY OF OCTOBER 2022 / 28TH ASWINA, 1944
CRL.MC NO.1401 OF 2022
AGAINST THE ORDER/JUDGMENT IN ST 2395/2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - VII, KOZHIKODE
ST 2395/2019 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST
CLASS – VII (NI ACT CASES), KOZHIKODE
PETITIONERS IN CRL.M.C./ACCUSED IN S.T.NO.2395 OF 2019 ON THE FILE OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT-VII (NI ACT CASES), KOZHIKODE:
1 K.G. SIVADASAN NAIR, AGED 60 YEARS, S/O.GOVINDAN NAIR, DIRECTOR OF M/S.MINDMASTER TECHNOLOGIES PVT. LTD, 3RD FLOOR, SANTHI EMARALD, CHERUPARAMBATH ROAD, KADAVANTHRA P.O., KOCHI-682 020, RESIDING AT KOLLANICKAL HOUSE, MANEED P.O., ERNAKULAM, PIN – 682308.
2 ASOK JACOB GEORGE, AGED 48 YEARS, S/O.P.G.JACOB GEORGE, DIRECTOR OF M/S.MINDMASTER TECHNOLOGIES PVT. LTD, 3RD FLOOR, SANTHI EMARALD, CHERUPARAMBATH ROAD, KADAVANTHRA P.O., KOCHI-682 020, RESIDING AT 18H, TRINITY WORLD, NEPTUNE, SCEZ P.O, KAKKANAD, KOCHI, PIN – 682030.
REP. BY ITS DIRECTORS K.G.SIVADASAN NAIR AND ASOK JACOB GEORGE.
BY ADV. R.LAKSHMI NARAYAN
Crl.M.C.No.1401 of 2022
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RESPONDENTS IN CRL.M.C./COMPLAINANT IN S.T.NO.2395 OF 2019 ON THE FILE OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT-VII (NI ACT CASES), KOZHIKODE AND THE STATE:
T.R.RENJITH, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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O R D E R
Dated, this the 20th October, 2022
This petition has been filed under Section
482 of Code of Criminal Procedure (hereinafter
for short 'Cr.P.C.') to quash Annexure-A1 complaint, now pending as S.T. No.2395/2019 on the file of Special Judicial First Class Magistrate Court-VII (NI Act cases), Kozhikode on the ground that the cheque in question involved in the said prosecution does not
involve any legally enforceable debt or
liability. The petitioners are the accused in the above case.
petitioners, learned counsel appearing for the 1st respondent and the learned Public
Prosecutor.
counsel for the petitioners that when a cheque
4
Crl.M.C.No.1401 of 2022
issued towards payment of advance amount in consequence of an agreement to do certain acts, the same by itself cannot be read as one issued for a legally enforceable debt or liability. In order to buttress this point, the learned counsel invited the attention of
this Court to Annexure-A2 agreement entered into between the parties. She submitted that “Super over” Cricket bowling competition at Lulu Mall, Kochi from July 5th till July 14th (10 days) was agreed to be powered by
M/s.Mindmaster Technologies Private Limited (PIU referred in the agreement) and in the agreement stipulations were made with regard to the PIU deliverables, online deliverables, PR deliverable and payment terms. It is submitted by the learned counsel for the petitioners that though there was agreement
and issuance of cheque for Rs.2,20,500/-, the program could not be performed as agreed for a period of 10 days and the petitioners got
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opportunity to do it only for few days and, therefore, the stipulations of the agreement not fully complied. No publication also was effected. It is submitted further that, in the legal notice issued and produced as AnnexureA4 also, only one sentence referred to the effect that the agreement was fully performed and the said recital alone is available in the complaint also. According to the learned counsel for the petitioners, the said recital alone is not sufficient.
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performed and specific contention in this regard has been raised in the demand notice as well as in the complaint and the other aspects are matters of proof based on evidence to be adduced during trial. Therefore, without opting for trial, premature quashment of the complaint could not be justified.
by the learned counsel for the 1 st respondent.
complainant, viz., M/s.Ideal Publications Trust Publishers to represent 'Madhyamam daily' also was disputed. However, the learned counsel for the respondents relied on the
authorisation and the recitals in the agreement showing the connection between 'Madhyamam daily' and Ideal Publication Trust.
the learned counsel for the petitioners are concerned, I leave the same to be agitated by adducing evidence during trial and at this
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7
stage, those contentions cannot be reasons for quashing the complaint.
Therefore, the liberty of the petitioners to agitate the said contentions on evidence is left open and the Crl.M.C. is dismissed, being not entertainable at this stage.
Sd/-
A.BADHARUDEEN, JUDGE.
ww
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APPENDIX OF CRL.MC 1401/2022
PETITIONERS' ANNEXURES:
| ANNEXURE | A1 THE COPY OF THE COMPLAINT NUMB |
ERED AS |
|---|---|---|
| ST NO.2395/2019 ON THE FILE | OF THE | |
| SPECIAL JUDICIAL FIRST MAGISTRATE COURT-VII (NI ACT KOZHIKODE. |
CLASS CASES), |
|
| ANNEXURE | A2 THE PHOTOCOPY OF AGREEMENT 2.6.2019 EXECUTED BETWEEN MA AND 3RD PETITIONER AND 1ST RESP |
DATED DHYAMAM ONDENT. |
| ANNEXURE | A3 THE PHOTOCOPY OF CHEQUE 6.7.2019, ISSUED BY THE 3RD PET TO MADHYAMAM DAILY. |
DATED ITIONER |
| ANNEXURE | A4 THE PHOTOCOPY OF LEGAL NOTIC 28.10.2019, ISSUED TO THE PETIT |
E DATED IONERS. |
| ANNEXURE | A5 THE PHOTOCOPY OF ADVERTISEMEN DATED 19.07.2019 ISSUED BY MAD FOR RS.3,15,000/- TO 3RD PETITI |
T BILL HYAMAM, ONER. |
3 issues framed by the court
Whether a cheque issued for performance of a future act is considered as a legally enforceable debt or liability under Section 138 NI Act.
Whether a complaint under Section 138 of the NI Act can be quashed under Section 482 Cr.P.C. without evidence.
Whether the authority of the complainant to represent the publication was established sufficient to justify quashing.
1 provisions across 1 enactments
K.G. Sivadasan Nair
Asok Jacob George
M/s. Mindmaster Technologies Pvt. Ltd.
M/s. Ideal Publications Trust
State of Kerala
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
