IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.MC.No. 1926 of 2009(A) ------------------------- CC.664/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... PETITIONERS: ------------------- 1. K.E.MATHEW, KANICHUKADU VEEDU, PURAMATTOM, THONIPPUZHA. 2. MARIKUTTY MATHEW, S/O.K.E.MATHEW, KANICHUKADU VEEDU, PURAMATTOM, THONIPPUZHA. BY ADV. SRI.C.S.SUNIL RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THOMAS JOSEPH, THEKKEKARA VEEDU, NALUKODIKARA, PAIPPADU VILLAGE, CHANGANASSERY. R1 BY PUBLIC PROSECUTOR SRI. S.U.NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No.1926 of 2009. ================== Dated this the 27th day of August, 2009. O R D E R Petitioners are the accused and second respondent is the complainant in CC.664/2007 on the file of Judicial First Class Magistrate, Changanasseri taken cognizance by the learned Magistrate on Annexure 2 complaint for the offence under section 420 of Indian Penal Code. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure 2 complaint and the cognizance taken by the learned Magistrate. 2. Though notice was served on second respondent, he did not appear. Learned counsel appearing for the petitioner argued that under Annexure A1 judgment shows that complaint filed by the first respondent alleging that first petitioner committed an offence under section 138 of Negotiable Instrument Act was tried and acquitted and it is thereafter Annexure A2 complaint was filed. The learned Crl.M.C. No.1926 of 2009. 2 counsel argued that even if Annexure A2 complaint as such is accepted ingredients of the offence under section 420 of Indian Penal Code is not attracted and therefore proceedings is to be quashed. The learned counsel also argued that in any case, no case is made as against second accused, the second petitioner and hence the case as against second respondent is to be quashed. 3. The argument of the learned counsel is that to attract an offence under section 420 of Indian Penal Code, there should be an allegation in that complaint that there was a dishonest intention on the part of the accused to cheat the first respondent at the very inception and there is no such allegation. It is argued that as per the complaint Rs.90,000/- was borrowed and towards its repayment a cheque was issued by the first petitioner from a joint account maintained by the first petitioner along with the second petitioner, his wife and the cheque was dishonoured as there was no sufficient amount and if that be so, there is Crl.M.C. No.1926 of 2009. 3 no case that when Rs.90,000/- was originally borrowed, there was a dishonest intention to cheat. 4. On going through Annexure A2 complaint I can not accept the submission of the learned counsel. Though on a superficial reading of paragraph 3 of the complaint it may appear that the cheque was issued when repayment of the amount due was claimed, a proper read of paragraph 3 shows that it was not the case of the first respondent. What is contended in paragraph 3 is that Rs.90,000/- was due to the first respondent from the petitioner. It is stated that first respondent was made to believe that first petitioner is having an account and there is sufficient amount in that account and cheque No.419416 dated 15.8.1999 being issued in that account will be honoured and believing those words, Rs.90,000/- was given. If paragraph 3 is so appreciated, it cannot be said that there is no allegation that there was a dishonest intention to cheat. If that be so, on that ground the proceedings cannot be quashed. Crl.M.C. No.1926 of 2009. 4 5. The learned counsel then submitted that in Annexure A1 judgment, where there is a finding that when examined first respondent deposed that amount was borrowed in May and cheque was issued in August. But in paragraph 6 of the judgment, it is stated that amount was borrowed on 15.8.1999 and cheque was also issued on the same day. Therefore based on that observation the complaint cannot be quashed. Question whether if the first respondent had Rs.90,000/- in his account on that day, whether first respondent would have borrowed that amount and giving a cheque on that day, which is based on the improbability of the case. The complaint cannot be quashed on that ground exercising the powers under section 482 of Code of Criminal Procedure. Petitioner is at liberty to raise all contentions before the learned Magistrate. 6. The learned counsel vehemently argued that second petitioner is not a signatory to the cheque and there is no specific allegation as against the second petitioner in Crl.M.C. No.1926 of 2009. 5 the complaint and therefore the complaint as against the second petitioner is only an abuse of process of court. Complaint shows that there is an allegation that second respondent made him believe that then a sufficient amount in his account and the cheque which is being issued by the first petitioner is in an account maintained by the first petitioner and that it will be encashed and relieving if money was paid. In such circumstances it cannot be said that there is no allegation to constitute an offence as against the second petitioner also. The question whether there is evidence to support the allegations in that complaint, cannot be decided at this stage. Hence with liberty to raise all the contentions raised in this petition before the learned Magistrate. Petition is dismissed. 7. Learned counsel appearing for the petitioners then submitted that a non- bailable warrant pending. If that be so, it is up to the petitioners to surrender before the learned Magistrate and seek regular bail. I find no reason to Crl.M.C. No.1926 of 2009. 6 believe that if the petitioners surrender and files an application for bail, considering the nature of offence, Magistrate will not grant or will not pass orders in the application on the date of surrender. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE app/-