IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.MC.No. 1335 of 2009(B) -------------------------------------- [CC.NO.538/2008 OF JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR] .................... PETITIONERS/ ACCUSED: ------------------------------------- 1. MAHINDRA & MAHINDRA FINANCIAL- SERVICES LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR. 2. PRASAD KRISHNAN, (MANOJ), KRISHNAVILASAM, VATTUKULAM, KADAPPOOR. 3. RANJITH BALAKRISHNAN, MANAGER, MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD., THALASSERI BRANCH. BY ADVS. MR.M.ASOKAN, MR.DEVAPRASANTH.P.J. RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------- 1. P.C.VINOD KUMAR, S/O.LATE CHANDRASEKHARAN NAIR, VALLIKKAD PUTHENPURAYIL VEEDU, ETTUMANUR VILLAGE, KOTTAYAM. 2. BABY VARGHESE, PARAYIL VEEDU, PATTITHANAM. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. MR.PHILIP T.VARGHESE, MR.THOMAS T.VARGHESE. R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO. 1335/2009-B: CRL.M.APPL. NO. 2106/2009 IN CRL.M.C. NO.1335/2009-B DISMISSED 30/09/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1335 OF 2009 =========================== Dated this the 30th day of September,2009 ORDER Petitioners are accused 1 to 3 in C.C.538/2008 on the file of Judicial First Class Magistrate Court, Ettumanur taken cognizance by the learned Magistrate for the offence under section 420 and 408 read with section 34 of Indian Penal Code, after conducting an inquiry under section 202 of Code of Criminal Procedure on Annexure I complaint. Petition is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken as against the petitioners contending that ingredients of an offence is not made out even if the allegations in Annexure I complaint are accepted. 2. Learned counsel appearing for the petitioners and learned counsel appearing for first respondent,the complainant, and learned Public Prosecutor were heard. 3. Annexure I complaint shows that according to first respondent, he had availed a loan of Rs.3 lakhs from Kottayam branch of first petitioner Mahindra & Mahindra Financial Services Ltd and purchased a Maruti Crl.M.C.1335/2009 2 Zen Car and at the time of the transaction he was made to execute an agreement and also to sign and handover blank printed forms and stamp papers and while so second petitioner wanted first respondent to handover a signed blank cheque, out of two blank cheques, and pursuant to the request Cheque No.015720 drawn in the Kottayam Branch of UTI Bank was signed and handed over to the second petitioner who is a friend of the fourth accused. It is contended that though first respondent paid Rs. 1,00,000/- towards the transaction, he defaulted to pay the remaining instalments and by that time on the request of the fourth accused he had entrusted the Car to him and while it was in the possession of the fourth accused, second petitioner obtained possession of the car. It is alleged that it was handed over by the fourth accused to second petitioner as a result of conspiracy. First respondent would also allege that subsequently claiming that the said cheque was issued to Thalassery Branch of the first petitioner and it was dishonoured, a notice was received from the first petitioner and first respondent had sent a reply stating the real facts. It is alleged that the said cheque was handed over by the second petitioner, to be presented before the Thalassery Branch so as to institute a case and hence all the accused committed offences under sections 420 and 408 read with section 34 of Indian Penal Code. But Crl.M.C.1335/2009 3 learned Magistrate took cognizance of only the offence under section 420 of Indian Penal Code. The question is even if the allegations in Annexure I complaint is accepted in toto as correct, whether the ingredients of an offence under section 420 IPC is attracted. If it is not attracted, it can only be found that continuation of the proceedings against the petitioners is an abuse of process of the court and if so to secure justice it is to be quashed. 4. On scanning the entire allegations in Annexure I complaint, I find that ingredients of an offence under section 420 of Indian Penal Code is not attracted. Even if the case is accepted, it would only show that according to first respondent, a signed blank cheque was issued by the first respondent to the second petitioner, as requested by him as security for the loan transaction, and the cheque was later presented for encashment through the Thalassery Branch of the first petitioner. Admittedly when the amount is due, out of Rs.3 lakhs availed by the first respondent, only Rs.1,00,000/- was paid. There is no allegation in the complaint that first respondent was induced to part with the dishonoured cheque, based on which Annexure V complaint was filed before the Judicial First Class Magistrate Court, Tellicherry, and is now pending as C.C.41/2009 and it was with a dishonest intention to Crl.M.C.1335/2009 4 cheat. In the absence of a case that at the inception there was a dishonest intention to cheat, even if the case of the first respondent is accepted, an offence under section 420 is not attracted. Even if the case is accepted, it would only show that a signed blank cheque issued to the second petitioner, was used as a cheque at a later stage, which will not amount to an offence under section 420 IPC. Moreover, as against the petitioners there is no specific allegation except that there was conspiracy. In such circumstance, continuation of the proceedings as against the petitioners is only an abuse of process of court. The question whether the dishonoured cheque was issued as claimed by the first petitioner in C.C.41/2009 or was handed over by the first respondent as a signed blank cheque and that too as security is a matter to be decided by the learned Magistrate on evidence in C.C. 41/2009. Petition is allowed. C.C.538/2008 on the file of Judicial First Class Magistrate Court, Ettumanur as against the petitioners accused 1 to 3 is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006