IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.MC.No. 1631 of 2009(B) ------------------------------------ ST.1962/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM (CC NO.226/2008 OF JUDL.FIRST CLASS MAGISTRATE, KOOTHUPARAMBA) .................... PETITIONER(S): ACCUSED. -------------------------------------- 1. SIVADAS MENON, MANAGING DIRECTOR, STERLING FARM RESEARCH SERVICE (P) LTD., RAVIPURAM, COCHIN - 16. 2. N.S.SREENIVASAN, GENERAL MANAGER (ACCOUNTS), STERLING FARM RESEARCH SERVICE (P) LTD., RAVIPURAM, COCHIN - 16. BY ADV. SRI.B.PREMNATH (E) RESPONDENT(S): COMPLAINANT & STATE. -------------------------------------------------------------- 1. M.SURENDRAN, S/O. PAITHAL, PROPRIETOR, HARITHA ENTERPRISES, MALOOR, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICE, MALOOR POLICE STATION (REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1631 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.226/2008 on the file of Judicial First Class Magistrate's Court, Kuthuparamba. First respondent lodged Annexure-II complaint alleging that petitioners committed offences under Sections 499 and 500 read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings pending before the Magistrate contending that it is only an abuse of process of the court. Though notice was served on the first respondent, he did not appear. 2.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3.Learned counsel appearing for the petitioners pointed out that when the cheque issued by the first respondent towards the amount due to Sterling Farm Research Service (P) Ltd. was CRMC 1631/09 2 dishonoured, second petitioner, on behalf of the Company, lodged Annexure-I complaint alleging offence under Section 142 of Negotiable Instruments Act, which was taken cognizance by the Magistrate for offence under Section 138 of Negotiable Instruments Act. Summons was issued to the first respondent, but, he did not appear and finally, non bailable warrant was issued and he was arrested. Subsequently, that case was withdrawn, as the amount covered by the dishonoured cheque was received by the petitioners. As per Annexure-II complaint, after receipt of the summons in S.T.No. 1962/2003, a letter was sent by him to the counsel appearing for the Company and vakalath was entrusted to a counsel at Ernakulam and his junior counsel informed the first respondent that as the amount is paid, there will be no difficulty in the case and on 22.2.2008, at 5.30 p.m. Maloor police came to his shop for execution of arrest warrant and at that time, about fifty persons gathered CRMC 1631/09 3 there finding the police and when cause of the arrest was asked, it was informed that there is an arrest warrant against the first respondent and even though first respondent disclosed that entire amount was paid, it was not believed by the people who gathered there and later people started calling him “dishonoured cheque” and it was caused by the actions of petitioners and they committed offence under Section 499 of Indian Penal Code. Learned counsel pointed out that even if the allegations are accepted, an offence under Section 499 is not attracted and continuation of the proceedings is only an abuse of process of the court. 4. Section 499 provides that whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any persons intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person is said, to defame that person and is punishable CRMC 1631/09 4 under Section 500 of Indian Penal Code. Therefore, in order to attract an offence under Section 499, first respondent must have a case that petitioners, by words either spoken or intended to be read or by signs or by visible representations made or published any imputation concerning him with an intention to harm or knowing or having reason to believe that such imputation will harm his reputation. Even if the allegations in Annexure-II complaint are accepted, the case is only that a complaint was filed by the Company represented by the second petitioner with first petitioner as the Managing Director, after the cheque issued by the first respondent in favour of the company was dishonoured, alleging that first respondent committed an offence under Section 138 of Negotiable Instruments Act. It is admitted in the complaint itself that summons was served on the first respondent and he did not appear. It was, in such circumstances, Magistrate issued a non CRMC 1631/09 5 bailable warrant. If, while executing the non bailable warrant people had gathered there, petitioners cannot be found fault with for the same. There cannot be any imputation on the part of the petitioner, with an intention to harm the reputation of the first respondent. Therefore, ingredients of an offence under Section 499 is not attracted in Annexure-II complaint, even if the allegations are accepted as correct. Therefore, continuation of the proceedings is only an abuse of process of the court. Petition is allowed. C.C.No.226/2008 on the file of Judicial First Class Magistrate's Court, Kuthuparama as against the petitioners is quashed. 10th July, 2009 (M.Sasidharan Nambiar, Judge) tkv