IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 Crl.MC.No. 4130 of 2009() ------------------------- CC.3703/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... PETITIONER/2ND ACCUSED IN CC 3703/2009: ------------------------------------------- SUMATHY S.MENON AGED 65, W/O.SIVARAMA MENON, "ISWARYAM", KANAYAM ROAD, GURUVAYOORAPPAN NAGAR, KULAPPULLY, SHORANUR 2 VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.M.N.MATHEW RESPONDENTS/DEFACTO COMPLAINANT/1ST ACCUSED/STATE: ----------------------------------------------------- 1. RAJENDRAN T.K., AGED 37/2005 S/O.NARAYANAN NAIR, THACHARAKUNNATHU HOUSE, IRINJALAKUDA, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. P.RAJESH, AGED 35/2005, S/O.SIVARAMA MENON, KONDOTTIL HOUSE, PALLATH APARTMENT, POONKUNNAM, THRISSUR TALUK. THRISSUR DISTRICT. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 4130 OF 2009 -------------------------- Dated this the 26th day of March, 2010 O R D E R Petitioner is the second accused in C.C. No.3703/2009 on the file of Judicial First Class Magistrate, Irinjalakuda taken cognizance for the offences under Sections 417 and 420 read with Section 34 of Indian Penal Code on Annexure-A5 final report in Crime No. 83/2005 of Irinjalakuda Police Station. The first respondent filed Annexure-A1 complaint before the learned Magistrate against the first accused alleging that he was cheated by issuing a cheque in the account of his mother and when it was presented for encashment, it was dishonoured on the ground that signature differs and first accused thereby committed an offence under Section 420 of Indian Penal Code. It was sent for investigation under Section 156(3) of Code of Criminal Procedure, based on which the crime was registered. After investigation, Annexiure-A5 final report was filed implicating the mother as second accused. Petition is filed under Section 482 of Code of Criminal Procedure, to quash the proceedings against the petitioner contending that ingredients of the offences as against the petitioner is not attracted. 2. Though notice was served on the first respondent the defacto complainant, he did not appear. 3. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. Crl.M.C.No.4130/09 2 4. Annexure-A1 complaint shows that it was the case of the first respondent that on 20.7.2004, first accused contacted first respondent over phone and requested for financial help. Considering their relationship, first respondent paid Rs.3,50,000/- to the first accused at his house on 12.8.2004 and at that time first accused issued a cheque drawn in Canara Bank, Shoranur branch showing the date as 12.11.2004 for Rs.3,50,000/-. When that post dated cheque was presented for encashment, it was dishonoured on the ground that signature differs. It is alleged that first respondent received the cheque, on the representation made by the first accused that it is the cheque issued in his account and it can be encashed and first accused thereby cheated him. There is absolutely no allegation as against the petitioner mother of the first accused in Annexure-A1 complaint. 5. Learned Public Prosecutor pointed out that subsequently when it was found out that the cheque issued by the first accused is in the account maintained by the petitioner, investigating officer conducted an investigation on that aspect and based on the statement of the first respondent that both the mother and the son jointly cheated him, the petitioner was also implicated. As rightly argued by the learned counsel appearing for the petitioner, if the son has used a cheque leaf issued to his mother in the account maintained by the mother, it cannot be presumed Crl.M.C.No.4130/09 3 that it was done with the knowledge of the mother or with her consent. Hence for the sole reason that the son issued a cheque from the account maintained by the mother, the mother cannot be proceeded. That apart, no inference could be drawn that the mother had also joined with the son in issuing the cheque. When there is no material to show that the cheque was issued by the first accused from the account of the petitioner with her knowledge or consent, petitioner cannot be prosecuted. If that be so, no offence under Section 417 or 420 of Indian Penal Code against the petitioner would lie. Hence continuation of the proceedings as against the petitioner is only an abuse of process of court. Petition is allowed. C.C.No.3703/2009 on the file of Judicial First Class Magistrate, Irinjalakuda as against the petitioner the second accused is quashed. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C.No.4130/09 4