IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Crl.MC.No. 409 of 2006() ------------------------ CC.112/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE (E . O),ERNAKULAM .................... PETITIONER(S): ACCUSED. ----------------------- K.SASIKUMAR, LOTUS PONNAMBI, VELLARADA, TRIVANDRUM. BY ADV. SRI.M.R.SARIN PANICKER SRI.M.R.SASITH PANICKER RESPONDENT(S): COMPLAINANT & STATE. ----------------------------------------------- 1. M.S.MUTHOOT CAPITAL SERVICE LIMITED, MUTHOOT TOWER, M.G.ROAD, COCHIN 35, REP. BY ITS AUTHORIZED, REPRESENTATIVE T.N.BHUVANENDRAN, MUNDACKAL HOUSE, UDAYAMPEROOR. 2. STATE OF KREALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.661/06 IN CRL.M.C.NO.409/06 //DISMISSED// 18.2.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.409 OF 2006 ----------------------------------------------------- DATED THIS THE 18TH DAY OF FEBRUARY , 2009 O R D E R This petition is filed under Section 482 of Cr.P.C. by the accused in C.C.No.112/04 pending before the Court of Additional Chief Judicial Magistrate's Court(Economic Offences), Ernakulam. The prayer in this petition is to quash Annexure A1 complaint filed by the first respondent under Sections 190 and 200 of Cr.P.C. read with Section 138 of Negotiable Instruments Act and Section 420 of IPC, against the petitioner as the accused. It is stated in this petition that the above case is pending against the petitioner before the concerned court alleging commission of the offence punishable under Section 138 of Negotiable Instruments Act. 2. The facts of the case mentioned in the petition is as follows: The petitioner herein availed a hire purchase loan from the first respondent herein for purchasing motor vehicle No.KL-01-Y- 9948. After executing the hire purchase agreement, towards the CRL.M.C.No.409/06 -2- loan amount, the petitioner issued a cheque dated 20.2.2004 for Rs.17,000/-, which when sent for collection was dishonoured by the Bank for the reason “funds insufficient”. Thereafter, a lawyer notice was issued to the petitioner herein by the first respondent on 11.3.2004 which was acknowledged by the petitioner on 16.3.2004. The petitioner did not make payment and Annexure A1 complaint was filed on 29.4.2004 before the Additional Chief Judicial Magistrate's Court(Economic Offences), Ernakulam and that court took cognizance of the case under Section 138 of Negotiable Instruments Act and C.C.No.112/2004 is pending. It is also mentioned in the petition that on 19.11.2003, the first respondent had already repossessed the vehicle and issued lawyer notice on 21.11.2003 demanding the amount of Rs.45,000/- from the petitioner as the amount due towards the loan availed by the petitioner under the hire purchase scheme. Annexure A6 is the copy of that lawyer notice. Thereafter, a telegram sent by the complainant was also received by the petitioner on 2.12.2005, wherein, it was directed to clear the dues within three days, failing which the vehicle KL-01-Y-9948 will be sold by the first respondent. Copy of that telegram is produced as Annexure A7. Thus, according to the petitioner, on 19.11.2003, the vehicle was repossessed and as on CRL.M.C.No.409/06 -3- 20.2.2004, no legally enforceable debt or liability existed between the petitioner and the first respondent. Therefore, the prosecution under Section 138 of Negotiable Instruments Act will not lie against the petitioner and the continuance of proceedings is an abuse of process of court and is liable to be quashed. 3. Heard the learned counsel appearing for the petitioner and the first respondent. 4. It is submitted by the learned counsel appearing for the petitioner that the cheque dated 20.2.2004 is a post-dated cheque handed over by the petitioner at the time of the hire purchase agreement and the vehicle was repossessed by the first respondent before 21.11.2003 as mentioned in Annexure A6 lawyer notice issued by the first respondent to the petitioner. The learned counsel relied on the decision reported in Sudha Beevi v. State of Kerala (2004(2) KLT 746) and argued that the petitioner as the hirer of the vehicle, KL-01-Y-9948 cannot be prosecuted under Section 138 of Negotiable Instruments Act, after the vehicle has been repossessed by the first respondent. 5. It is submitted by the learned counsel appearing for the first respondent that the facts in this case is different from the facts CRL.M.C.No.409/06 -4- mentioned in the above said decision. The cheque dated 20.2.2004 issued in the present case is not a post-dated cheque. It was issued by the petitioner subsequent to the lawyer notice dated 21.11.2003 for the amount due from the petitioner as on that date towards the loan amount as demanded in Annexures A6 and A7. Therefore, it is a legally enforceable debt and proceedings under Section 138 of N.I.Act will lie against the petitioner. So, according to the learned counsel for the first respondent, there is no ground to quash the proceedings in pursuance of Annexure A1 complaint and C.C.No.112/04, now pending before the concerned court. 6. Thus, the facts stated in the petition regarding the date of issuance of the cheque in question whether it is post-dated one or issued subsequent to the repossession of the vehicle or in pursuance of the demand made in the lawyer notice Annexure A6, reminder of which was sent by the first respondent as per the telegram Annexure A7 are matters to be decided by the trial court after considering the evidence adduced by the parties. Though other offences were also alleged against the petitioner as revealed from Annexure A1, the learned Magistrate took cognizance at present against the petitioner under Section 138 of Negotiable Instruments Act only. Whether sufficient CRL.M.C.No.409/06 -5- ingredients are there and whether an offence will lie against the petitioner under Section 138 of Negotiable Instruments Act and whether such an offence has been committed by the petitioner, etc. will be decided by the learned Magistrate after considering the evidence to be adduced by the parties. This Court cannot decide all those disputed facts in a petition filed under Section 482 of Cr.P.C. The inherent jurisdiction envisaged under Section 482 of Cr.P.C. can be invoked by this Court only sparingly and with abundant caution, to meet the ends of justice. Considering the facts in the present case, I find no reason to invoke the jurisdiction under Section 482 of Cr.P.C. and there is no merit in this petition and the same is dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn