IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 Crl.MC.No. 2507 of 2005(C) ------------------------------------- CC.707/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER/ACCUSED : ---------------------------------- JOLLY STEPHEN, `YOUR OWN COLLECTION', OPP. ST.ANTONY'S CHURCH, KALOOR, KOCHI-17. BY ADV. SRI.T.M.ABDUL LATHEEF SMT.P.RESHMA KABEER SMT.VIJAYALAKSHMI. SRI.A.MUHAMMED HASHIM RESPONDENTS/COMPLAINANT & STATE : --------------------------------------------------------- 1. V.M.SIDHIQUE ALI, VALIYAVEETTIL HOUSE, HAMZAKUNJU BUILDINGS, HAMZAKUNJU LANE, S.R.M.ROAD, COCHIN-18. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * 3. K.H.MUMTAZ, W/O.LATE SIDHIQUE ALI, AGED 42 YEARS, VALIYAVEETIL HOUSE, HAMZAKUNJU LANE, SRM ROAD, KOCHI - 18 BY ADV. SRI.SHAJI P.CHALY - ADDL . R3 PUBLIC PROSECUTOR SRI.JAI GEORGE - R2 * R3 IS IMPLEADED AS ADDITIONAL THIRD RESPONDENT AS PER ORDER DATED 03.07.2008 IN CRL.M.A.NO.3566/08 IN CRL.M.C.2507/05 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2507 / 2005 ORDER IN Crl. M.Appln. No.10045/2005 IN Crl.M.C. No.2507/2005 DISMISSED SD/ 10/07/2008 V.K. MOHANAN, JUDGE /TRUE COPY/ P.A TO JUDGE scm V.K. MOHANAN, J. ------------------------------ Crl. M.C.No. 2507 of 2005 ------------------------------ Dated this the 10th day of July, 2008 O R D E R The accused in C.C No.707 of 1999 on the file of the Additional Chief Judicial Magistrate Court (E&O) Ernakulam, on his second round litigation, before this court by filing this petition under Section 482 of the Criminal Procedure Code with a prayer to quash Annexure A2 charge sheet framed against him. 2. The petitioner herein is the sole accused in C.C. No.707/1999 on the file of the Additional Chief Judicial Magistrate Court(E&O) Ernakulam. Initially, the case was filed for the offence punishable under Section 138 of Negotiable Instruments Act at the instance of one V.M. Siddique Ali, whose name is shown as first respondent in this proceedings. The said Siddique Ali died during the pendency of the Criminal Miscellaneous Case and as per order dated 10/07/2008 in Crl. M.A. No.3566/2008, the wife of the said V.M. Siddique Ali is impleaded as an additional third respondent. The petitioner in this Crl.M.C. seeks an order to quash Annexure A2 charge. Crl.M.C. 2507/2005 Page numbers 3. As stated earlier, C.C. No.707/1999 was instituted upon a private complaint filed by the husband of the additional third respondent on the allegation that the petitioner herein had borrowed a sum of Rs. 1,02,000/- from the complainant and towards the discharge of the above debt, the petitioner herein had issued a cheque for an amount of Rs. 1,02,000/- pertained to account No. 14953 of Syndicate Bank. When the cheque presented for encashment, the same was dishonoured for the reasons “insufficiency of funds” and “difference in signature of the drawer” . After complying the statutory formalities, the complaint was preferred by the complainant upon which cognizance was taken and C.C.No.707/99 was for the offence u/s 138 of Negotiable Instruments Act. During the trial of the case, it was brought on evidence that the cheque in question was connected with the account maintained by the wife of the petitioner. Therefore, a petition, i.e., C.M.P. 7674/2001 was filed by the complainant therein with a prayer to add Section 420 of I.P.C. against the accused/petitioner and the court below by the order dated 13/8/2003 allowed the said prayer. Crl.M.C. 2507/2005 Page numbers Challenging the above order the petitioner herein had preferred Criminal Revision Petition No. 2430/2003 before this Court and the same was disposed of by Annexure A1 order by this Court. This Court disposed of the same with certain observations and directions, which runs as follows; “ it is certainly open to the Magistrate to conduct necessary enquiry under section 244 Cr.P.C. Thereafter, the learned Magistrate must consider whether such a case has been made out by the complainant which will warrant a conviction under Section 420 of I.P.C. That decision has to be taken under Section 245 (1) /246 Cr.P.C. If there are sufficient materials, charge has to be framed under Section 246 of Cr.P.C. If sufficient materials are not there to induce the requisite satisfaction, the accused has to be discharged under Section 245(1) of Cr.P.C.” On the basis of the observations of this court in the above Revision Petition, the matter was again considered by the court below and the court has framed Annexure A2 charge against the petitioner. It is the above charge challenged in this proceedings. 4. I have heard the counsel for the petitioner as well as the Crl.M.C. 2507/2005 Page numbers additional third respondent and also the public prosecutor. Initially, the allegation against the petitioner was that he had committed an offence punishable under Section 138 of Negotiable Instruments Act, as he had failed to repay the amount which he availed as a loan from the complainant and also when the cheque issued by the petitioner dishonoured for want of fund and for difference in signature in the cheque. C.M.P No.7674/2001 was filed by the husband of the additional third respondent. When trial for the offence under Section 138 was commenced, evidence was to the effect that the cheque which was issued by the petitioner was pertinent to an account maintained by the wife of the petitioner and in fact the petitioner/accused was not having such an account maintained by him. Hence according to the complainant and the court below, the accused issued a cheque, which was not maintained by him but by his wife and believing on the basis of such documentary promise, the complainant was deceived and the accused has done it with the intention to cheat and thus according to the court below and complainant, there is the element of cheating and the Crl.M.C. 2507/2005 Page numbers complainant would not have parted the money to the petitioner, unless he was cheated in such a way by the petitioner. 5. This court while disposing of Crl.R.P 2430/2003 held that “ the allegations would indicate the commission of an offence under Section 420 I.P.C. The learned Magistrate can in these circumstances, certainly choose to proceed thereafter under Section 420 IPC following the warrant procedure. Nothing in law stands against a Magistrate resorting to that course.” While disposing of the Revision Petition this court has directed “the Magistrate must consider whether such case has been made out by the complainant which will warrant a conviction under Section 420 IPC and that decision has to be taken under Section 245(1)/246 of Cr.P.C.” Learned counsel for the petitioner submitted that the court below has miserably failed to act in accordance with the observation and direction contained in Annexure 1 order of this Court. According to the complainant, there is no material to frame charge under Section 420 against the petitioner. Therefore, the counsel submitted that Annexure A2 is to be quashed as no material available to Crl.M.C. 2507/2005 Page numbers frame a charge against the petitioner under Section 420 I.P.C. 6. Per contra, the learned counsel for the additional third respondent after inviting my attention to Annexure A2 submitted that the trial court has framed a charge in accordance with the procedure and on the basis of the materials available on record. Learned counsel took me through Annexure A2 charge. According to the counsel the Magistrate has rightly framed the charge under Section 420 against the petitioner and the sufficiency of the material evidence is to be appreciated and decided at the time of trial. 7. I have carefully considered the rival contentions advanced on behalf of the petitioner as well as the additional third respondent. I have also perused the available materials including the Annexure A2 charge. On a perusal of Annexure A2 charge, it is clear that the Magistrate has decided to frame charge under Section 420 of I.P.C as he had prima facie convinced, since the material such as the depositions of the witnesses and the documents, on record reveal such offence. It is also clear from Annexure A2 charge, there are materials which are Crl.M.C. 2507/2005 Page numbers sufficient and warrant to proceed against the petitioner under Section 420 of I.P.C. According to the learned counsel for the petitioner, there is no material to show that the petitioner was fully aware of the fact that the account in question which pertinent to the cheque leaf was not of him. So according to the petitioner, there is no material or allegation to attract the Section 420 of I.P.C. The trial court after perusal of the evidence of the witnesses and the materials, prima facie of the view that accused can be prosecuted, since the available materials shows that petitioner had issued the cheque, which relating to the account of his wife and said cheque was given with a view to cheat the complainant and thereby to get a wrongful gain. The correctness of the said allegations and its proof, of course, to be evaluated at the time of appreciation of evidence, that too towards the completion of trial. Going by the material on records, I find no reason to interfere with the Annexure A2 charge framed by the court below. 8. From the debate during the hearing of the matter, it appears that there was some move for settlement but the same was not Crl.M.C. 2507/2005 Page numbers materialised. If the parties are agreeable for settlement, the same can be done before the court below in accordance with law. The learned counsel for the petitioner submitted that the observation or finding of this Court, if any, with respect to Annexure A2, that may not be considered and influenced by the court below while deciding the case. The court below is directed to proceed with the trail in accordance with the law and untrammeled by any observation or finding of this Court in this order. The parties are at a liberty to adduce evidence to substantiate their respective contentions in accordance with law. In the result, this Crl.M.C is dismissed, subjected to the above observation and there is no order as to cost. V.K. MOHANAN, JUDGE scm