IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Crl.MC.No. 3088 of 2008() ------------------------- CC.432/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... PETITIONER(S): ACCUSED 1 & 2: ------------------------------------------------- 1. VIJAYAKUMAR, S/O.LATE NARAYANA PILLAI, KARTHIKA, EDAVANASSERY, MYNAGAPPALLY, KOLLAM. 2. AMBIKA KUMARY, W/O.LATE NARAYANA PILLAI, KARTHIKA, EDAVANASSERY, MYNAGAPPALLY, KOLLAM. BY ADVS. MR.P.B.SURESH KUMAR, MR.LEO GEORGE. RESPONDENT(S): STATE AND DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSEPH THOMAS, LEELA BHAVANAM, EDAVANASSERY, MYNAGAPPALLY, KOLLAM. R1 BY PUBLIC PROSECUTOR MR. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3088 of 2008 -------------------------- ORDER Petitioners are the accused and second respondent, the defacto complainant in C.C.No. 432/2008 on the file of Judicial First Class Magistrate's Court, Sasthamcotta, taken cognizance for the offence under Section 420 read with Section 34 of Indian Penal Code on Annexure-A3(11) final report in Crime No.633/2007 of Sathamcotta Police Station, registered on the basis of Annexure-A3(3) complaint filed by the first respondent before the Magistrate and sent for investigation under Section 156(3) of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that earlier, Annexure-A1 notice was issued by the second respondent to the petitioners claiming that late Narayana Pillai, the husband of the second petitioner and father of the first petitioner, had CRMC 3088/08 2 borrowed Rs.1,60,000/- and towards its repayment, Narayana Pillai issued Cheque No.984925, drawn in the account maintained by him in Quilon District Co-operative Bank Ltd., Thevalakkara Branch and while so, Narayana Pillai died and thereafter, second respondent presented the cheque for encashment and it was dishonoured on the grounds 'funds in sufficient, drawer's signature incomplete/differs/required', etc. Annexure-A3(3) complaint shows that it is the very same cheque, based on which a complaint was filed contending that the cheque was issued by the second petitioner after the first petitioner forged the signature therein and representing that the cheque is being issued in an account maintained by the second petitioner under the guise of repaying the amount due from deceased Narayana Pillai and when the cheque was presented, it was dishonoured and petitioners thereby cheated second respondent. But, in the light of Annexure-A1 notice, the case in CRMC 3088/08 3 Annexure-A3(3) complaint could only be false. It is also contended that ingredients of an offence under Section 420 of Indian Penal Code is not attracted against the petitioners and therefore, cognizance should not have been taken. 2. Though notice was served on the second respondent, he did not appear. 3. Annexure-A3(3) complaint as well as Annexure-A3(11) final report show that prosecution case is that under the guise of repaying Rs.1,60,000/- borrowed by deceased Narayana Pillai, the husband of the second petitioner and father of the first petitioner, subsequent to his death, second petitioner issued Cheque No.984925, making second respondent believe that it is issued in the account maintained by her, when it was not so and instead of the signature of the second petitioner, her signature was forged by the first petitioner. Annexure-A1 notice sent by Advocate Sri.Saiju Koshy for the second respondent to the petitioners on CRMC 3088/08 4 16.3.2001 falsifies the allegation in Annexure-A3 (3) complaint. Annexure-A1 establishes that, according to the second respondent, the dishonoured cheque was issued by late Narayana Pillai and after his death, it was presented by the second respondent and it was dishonoured and being the legal heirs, amount due from late Narayana Pillai was demanded from the petitioners. If that be the case, the allegation in Annexure-A3(3) complaint as well as in Annexure-A3(11) final report that the cheque was issued by the first petitioner with the forged signature of the second petitioner can only be rejected on its face. On that sole ground, the case is liable to be quashed. 4. Added to that, there is no case that second respondent had parted with any money on the representation made by the petitioners. Even if the allegation in Annexure-A3(3) complaint is accepted, money was borrowed by late Narayana Pillai and not the petitioners. If Narayana Pillai died before CRMC 3088/08 5 repayment of the amount, second respondent, in law, could realise the same only from the assets left behind by Narayana Pillai with the petitioners, his wife and son. Personally, petitioners have no liability to discharge. Therefore, even if petitioners promised to pay that amount and failed to pay the same, no offence under Section 420 of Indian Penal Code is attracted. Therefore, even if the allegations in Annexure-A3(3) complaint is accepted, which cannot be accepted in the light of the case in Annexure-A1 notice, an offence under Section 420 of Indian Penal Code is not attracted. Therefore, continuation of the proceedings is only an abuse of process of the court. Petition is allowed. C.C.No.432/2008 on the file of Judicial First Class Magistrate's Court, Sasthamcotta is quashed. 7th April, 2010 (M.Sasidharan Nambiar, Judge) tkv