Disposed

C.C.Wilson v. Rajan

Kerala HC2 Jun 2023Crl.MC/1073/2015

Case brief

AI extract

What is this about?

Petitioner sought to quash criminal proceedings for forgery implying that the complainant was barred from filing a separate complaint after contesting under NI Act. Court held complaint valid as it raised new facts of fraud discovered later; remitted both cases to same Magistrate to avoid conflict.

What did the court decide?

Petition disposed; matter remitted to Magistrate to follow Pareshbhai principles and try issues together.

C.C.Wilson Vs Rajan — Cheque Dishonour | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
FRIDAY,THE2NDDAYOFJUNE2023/12THJYAISHTA,1945
CRL.MCNO.1073OF2015

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AGAINSTCC616/2014OFJUDICIALMAGISTRATEOFFIRSTCLASS,
KUNNAMKULAM

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PETITIONER/ACCUSED:

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C.C.WILSON

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S/O.CHIRIYAKKU,CHERUVATHURHOUSE,KUNNUMKULAM,
PROP.CHERUVATHURFINANCE,PATTAMBIROAD,KUNNAMKULAM.

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BYADVS.

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SRI.SANTHEEPANKARATH
SRI.ARUNMATHEWVADAKKAN

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RESPONDENTS/COMPLAINANT & STATE:

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1RAJAN

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CHAMBAYILHOUSE,CHELANNURPOST,PALLITHAZHAM,
KOZHIKODE-673634.

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2STATEOFKERALA
REPRESENTEDBYITSPUBLICPROSECUTOR,HIGHCOURTOF
KERALA,ERNAKULAM,KOCHI-682031.

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BYADVSRI.S.SHYAMKUMAR

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SRI.VIPINNARAYAN,SRPP

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THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON
02.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING:

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Crl.M.C No. 1073 of 2015

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ORDER

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The petitioner herein is the accused in C.C.No.616/2014 on the files of the Judicial First Class Magistrate Court, Kunnamkulam. In the said case, he is accused of having committed offences punishable under Sections 464, 467, 468, 471, 472, and 474 of the IPC. He has approached this Court seeking to quash all further proceedings in the aforesaid case, contending that the continuance of the proceedings is nothing but an abuse of process. Short facts are as under:-

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The case of the petitioner is that he is conducting a Finance Company by the name Cheruvathoor Finance, Kunnamkulam. The 1st respondent herein owed a sum of Rs.30,00,000/- to the petitioner. In discharge of the legally enforceable debt, the 1st respondent has issued a cheque bearing No.460402 dated 16.01.2012. The cheque was presented for collection, and the same was dishonored for want of funds. A legal notice was issued, and thereafter, prosecution proceedings were initiated.

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Immediately thereafter, the 1st respondent lodged a complaint before the learned Magistrate, alleging that the petitioner herein, with fraudulent intent, induced the party respondent and his wife to hand over blank cheques by way of security and with malafide intent, converted the

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Crl.M.C No. 1073 of 2015

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same by fabricating the entries and presented the same and got it dishonored. The learned Magistrate, after following the formalities, took cognizance of the complaint for offences punishable under Sections 464, 467, 468, 471, 472, and 474 of the Indian Penal Code. The aforesaid proceeding is sought to be quashed on the ground that the defence of the accused in a proceeding initiated under section 138 of the NI Act cannot be the basis for lodging a criminal complaint.

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Sri. Santheep Ankarath, the learned counsel appearing for the

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petitioner, submits that a reading of the complaint would not disclose the ingredients of any of the offences alleged. It is contended that the defence of the 1st respondent in the complaint is that he had discharged the liability. This, according to the learned counsel, ought to have been raised as a defense in the proceeding under Section 138 of the Negotiable Instruments Act and not by filing a separate complaint.

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The learned counsel appearing for the 2nd respondent submitted that the contentions advanced by the petitioner cannot be sustained under law. Reliance is also placed on the judgment rendered by the Apex Court in Pareshbhai Amrutlal Patel and Others v. State of

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Gujarat and Another [(2020) 12 SCC 569], and it is submitted that in identical circumstances, the Apex Court has held that it would be desirable

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Crl.M.C No. 1073 of 2015

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to transfer both the cases, the second case to the court hearing the complaint under Section 138 to avoid conflict of judgments.

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I have considered the submissions advanced and have gone through the records as well. I find that the contention of the 1st respondent in the complaint filed by him is that the petitioner herein had used the cheques handed over by way of security by the 1st respondent and his wife fraudulently and had converted the same to make it appear that there was a legally enforceable debt. The 1st respondent in the complaint has detailed the manner in which the petitioner had committed the alleged offence. The learned magistrate has considered all the relevant aspects and has decided to take cognizance of the offence. I am unable to accept the contention of the petitioner that the 1st respondent is barred from initiating any such prosecution. As rightly submitted by the learned counsel appearing for the 1st respondent, it was only after the lodging of the complaint could the 1st respondent have known about the manner in which the cheques were used by the petitioner. Therefore, it cannot be said that merely because the complaint lodged by the 1st respondent was after the initiation of proceedings under Section 138 of the NI Act, the second complaint ought to be quashed.

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Even otherwise, on going through the complaint lodged by the

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Crl.M.C No. 1073 of 2015

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1st respondent, I find no reason to invoke the powers under Section 482 of the Code of Criminal Procedure and quash the same. It is no more res integra that the exercise of power under Section 482 Cr.P.C to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet does not constitute the ingredients of the offences alleged. Interference by the High Court under Section 482 Cr.P.C is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is trite that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 Cr.P.C for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding (see Rajeev Kourav v. Baisahab and Ors [ 2020 (2) KLJ 463]. The observations and directions issued by the Hon’ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. M/s. v. State of Maharashtra and

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Ors [AIR 2021 SC 1918] is also instructive.

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Furthermore, I find that the very same question raised by the petitioner had arisen before the Apex Court in Pareshbhai (supra). Since

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the issue in both the cases revolves around the same cheque, the ends of justice would be met if proceeding arising out of C.C.No.616/2014 are tried

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Crl.M.C No. 1073 of 2015

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by the very same court where the complaint under Section 138 of the NI Act is pending so that both the cases can be decided together to avoid contradictory judgment and to facilitate the resolution of issues which are common in both.

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I find that the complaint filed by the 1st respondent is pending as C.C.No.616/2014 on the files of the JFMC, Kunnamkulam. The complaint lodged by the petitioner is also pending on the files of the JFMC, Kunnamkulam, as CC No.1329/2012. As both complaints are pending before the same court, the learned magistrate shall follow the principles in Pareshbhai (supra) and decide the issues involved.

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This petition will stand disposed of with the above observations.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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Sru

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Crl.M.C No. 1073 of 2015

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APPENDIX OF CRL.MC 1073/2015

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PETITIONERANNEXURES

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ANNEXURE-1TRUECOPYOFTHELAWYERNOTICEDATED2.2.2012
ISSUEDONBEHALFOFTHEPETITIONERTOTHE1ST
RESPONDENT
ANNEXURE-2TRUECOPYOFTHEREPLYNOTICEDATED15.2.2012
ISSUEDTOTHEPETITIONERONBEHALFOFTHE1ST
RESPONDENT
ANNEXURE-A3TRUECOPYOFC.C.1329/2012ONTHEFILEOF
JUDICIALFIRSTCLASSMAGISTRATE'SCOURT,
KUNNUMKULAM
ANNEXURE-A4CERTIFIEDCOPYOFPRIVATECOMPLAINTDATED
27.3.2012ANDRE-NUMBEREDASC.C.616/2014ON
THEFILEOFTHEJUDICIALFIRSTCLASS
MAGISTRATE'SCOURT,KUNNAMKULAM.

C.C.Wilson v. Rajan

Case brief

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C.C.Wilson v. Rajan

Case brief

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