The High Court of Kerala dismissed a petition under Section 482 CrPC seeking to quash an offence under Section 138 NI Act. The court rejected the argument that cheques replaced without return renders the prosecution illegal, holding substantial questions remain for trial.
Petition under Section 482 CrPC for quashing the complaint was dismissed without merit.
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
MONDAY, THE 17TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944
CRL.MC NO. 541 OF 2022
ST.NO.222/2019 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT - THRISSUR
PETITIONER/ACCUSED:
DR. LAL KURIAN
AGED 50 YEARS
S/O.KURIAN, THE PROPRIETOR,
M/S.THE AYUSH MARKETING ASSOCIATES, RBG BUILDING, 62/2,
ALAGAPPA LAYOUT, POLLACHI, COIMBATORE - 642 001.
BY ADV T.K.SANDEEP
RESPONDENTS/COMPLAINANT & STATE:
1STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 31.
2K.N.UNNIKRISHNAN
AGED 58 YEARS
S/O.NARAYANANAN NAMBOOTHIRI, KURSSAROOR MANA,
THAIKATTUSSERY, EDAKKUNNY VILLAGE, THRISSUR,
AUTHORISED AGENT,
REPRESENTING M/S.SITARAM AYURVEDA LTD.,
REG. OFFICE AT XXV/397, ROUND SOUTH,
THRISSUR - 680 001.
R1 BY SR.PP-SRI.T.R.RENJITH
R2 BY ADV G.SREEKUMAR (CHELUR)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
17.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 541 OF 2022
2
ORDER
This is a petition filed under Section 482 of the Code of Ciminal Procedure,
to quash Annexure A1 complaint, filed by the 2nd respondent herein before the Additional Chief Judicial Magistrate Court, Thrissur, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter).
CRL.MC NO. 541 OF 2022 3
three cheques referred above, where from the prosecution in S.T.No.222/2019 arises, were issued, subsequently, the accused issued another 3 cheques from another account and therefore, the present cheques have no consideration. Therefore, the entire prosecution consequent to its dishonour is illegal. Therefore, he pressed for quashing the complaint.
CRL.MC NO. 541 OF 2022 4
Scindia v. Sambhajirao Chandrojirao Angre; [1992 Supp (1) SCC 335], State of Haryana v. Bhajan Lal; [1995 (6) SCC 194], Rupan Deol Bajaj v. Kanwar Pal Singh Gill; [1996 (5) SCC 591], Central Bureau of Investigation v. Duncans Agro Industries Ltd.; [1996 (8) SCC 164], State of Bihar v. Rajendra Agrawalla; [1999 (3) SCC 259], Rajesh Bajaj v. State NCT of Delhi; [2000 (3) SCC 269], Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd.; [2000 (4) SCC 168], Hridaya Ranjan Prasad Verma v. State of Bihar; [ 2001(8) SCC 645], M.Krishnan v. Vijay Singh; [2005(1) SCC 122], Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, the Apex Court summarised the principles while quashing a complaint. The principles are as under:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of
the Court, as when the criminal proceeding is found to have been initiated with mala
CRL.MC NO. 541 OF 2022 5
fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
CRL.MC NO. 541 OF 2022 6
In view of the matter, there is no reason to stall prosecution lodged legally,
on the basis of contentions now canvassed before this Court, for any reason. If
the petitioner has any contentions to defeat the contentions raised by the complainant, that can be adjudicated during trial and keeping the said liberty in
tact, this petition, which has no merits, stands dismissed.
Sd/A. BADHARUDEEN JUDGE
Bb
CRL.MC NO. 541 OF 2022 7
APPENDIX OF CRL.MC 541/2022
PETITIONER’S ANNEXURES
ANNEXURE IA TRUE COPY OF THE PRIVATE COMPLAINT IN
S.T.222/2019 ON THE FILE OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.
ANNEXURE IIA TRUE COPY OF THE LETTER ISSUED BY THE
COMPLAINANT TO THE PETITIONER.
ANNEXURE IIIA TRUE COPY OF THE COUNTER PRINT OUT OF E-
MAIL COMMUNICATION DATED 01/09/2018 ISSUED
BY THE PETITIONER TO THE COMPLAINANT.
ANNEXURE IVA TRUE COPY OF THE PLAINT IN O.S.340/2018
BEFORE THE COURT OF DISTRICT MUNSIFF
POLLACHI DATED 06/10/2018.
RESPONDENTS’ ANNEXURESNIL
PA To Judge
//True copy//
2 issues framed by the court
Whether the complaint under Section 138 of the Negotiable Instruments Act can be quashed on the ground that the cheques were issued for consideration and subsequently substituted without returning the
Whether the quantum of evidence required to establish consideration is an issue for trial or a ground for quashing the proceedings.
Colour shows how this judgement treated each authority
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao AngreReferred¶23
[1988(1) SCC 692], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre · Who else cites this
State of Haryana v. Bhajan LalReferred¶23
[1992 Supp (1) SCC 335], State of Haryana v. Bhajan Lal · Who else cites this
Rupan Deol Bajaj v. Kanwar Pal Singh GillReferred¶23
[1995 (6) SCC 194], Rupan Deol Bajaj v. Kanwar Pal Singh Gill · Who else cites this
Central Bureau of Investigation v. Duncans Agro Industries Ltd.Referred¶23
[1996 (5) SCC 591], Central Bureau of Investigation v. Duncans Agro Industries Ltd. · Who else cites this
State of Bihar v. Rajendra AgrawallaReferred¶23
[1996 (8) SCC 164], States of Bihar v. Rajendra Agrawalla · Who else cites this
Rajesh Bajaj v. State NCT of DelhiReferred¶23
[1999 (3) SCC 259], Rajesh Bajaj v. State NCT of Delhi · Who else cites this
Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd.Referred¶23
[2000 (3) SCC 269], Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd. · Who else cites this
Hridaya Ranjan Prasad Verma v. State of BiharReferred¶23
[ 2001(8) SCC 645], Hridaya Ranjan Prasad Verma v. State of Bihar · Who else cites this
M.Krishnan v. Vijay SinghReferred¶23
[2005(1) SCC 122], M.Krishnan v. Vijay Singh · Who else cites this
Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful HaqueReferred¶23
Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
1 provisions across 1 enactments
DR. LAL KURIAN
STATE OF KERALA
K.N.UNNIKRISHNAN
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court