IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.MC.No. 2953 of 2008() ------------------------- C.C.137/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... PETITIONER(S): 1ST ACCUSED: -------------------------------------------- K.P.NARAYANAN, AGED 54 YEARS, S/O.KARUNAKARAN NAIR, PUZHAMUDI HOUSE, POST PUZHAMUDI, KALPETTA. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): DEFACTO COMPLAINANT AND STATE: --------------------------------------------------------------------------------- 1. K.USMAN, S/O.MOHAMMED, KONTHIYODAN HOUSE, PANAMARAM POST, PANAMARAM VILLAGE, MANANTHAVADY TALUK. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.MATHEW KURIAKOSE R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C No.2953 of 2008 -------------------------- Dated this the 26th October, 2010 O R D E R Petitioner, the first accused in C.C No.137/2008 on the file of Chief Judicial Magitrate, Kalpetta taken cognizance on Annexure A1 complaint for the offence under Section 420 r/w 34 of Indian Penal Code, filed this petition under Section 482 of Cr.P.C to quash the cognizance taken against him contending that continuation of the proceedings as against the petitioner is only an abuse of the process of court . Petitioner would contend that he has instituted a complaint which was taken cognizance by the learned Magistrate as ST No.2308/2006 and the contentions raised herein were raised by the first respondent complainant as a defence in that case and after recording the evidence, learned Magistrate disbelieved the case and convicted him for the offence under Section 138 of Negotiable Instruments Act and in such circumstances, continuance of proceedings is only an abuse of the process of the court. Crl.M.C No.2953 of 2008 2 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel appearing for the first respondent pointed out that AnnexureA1 complaint contains necessary allegations to attract the offence against the petitioner and if at all petitioner is entitled to seek an order of discharge under Section 245 (1) of Cr.P.C and when the allegations raised in the complaint with the documents produced, show a prima facie case , it is not for this Court to exercise the inherent powers and quash the cognizance taken. 4. Learned counsel appearing for the petitioner pointed out that even if the entire allegations in Annexure A1 complaint are taken as correct, it is insufficient to attract the offence as against the petitioner and therefore the case against him is to be quashed. 5. Admittedly there was an agreement for sale of timber, belonging to the petitioner to the first respondent. It is also not disputed that there was dispute between them with regard to the performance of the contract. Annexure Crl.M.C No.2953 of 2008 3 -A1 complaint, even if accepted would show that while there was a settlement of the dispute, first respondent had furnished a cheque as security for due performance of the contract. So also, accused in ST No.2307/2006 had also handed over a cheque to the petitioner as security for performance of the contract. The case in Annexure-A1 complaint is that when subsequently dispute arose there was a mediation and in the mediation, petitioner agreed to return the cheques on payment of the money and as agreed, the cheques were returned to the mediators. The allegation is that petitioner after paying the money to the mediators obtained the cheque and later issued a notice demanding the amount, based on the cheque and thereafter lodged the complaint alleging that an offence under Section 138 of Negotiable Instruments Act is committed. By Annexure A2 judgment, learned Magistrate has already convicted the first respondent. It is admitted that an appeal is now pending before Sessions Court challenging the conviction in ST No.2308/2006. Crl.M.C No.2953 of 2008 4 6. The question is whether the ingredients of an offence under Section 420 of I.P.C as against the petitioner is attracted even if the entire allegations in Annexure-A1 complaint is accepted as such. As rightly pointed out by the learned counsel appearing for the petitioner, the case in Annexure-A1 complaint is that in furtherance of the mediation, dischonoured cheques originally issued by the first respondent and the other to the petitioner were agreed to be returned on payment of money and they were returned and entrusted with the mediators. The allegation is that from the mediators petitioner obtained the cheques and presented them and got them dishonoured. Though common intention and conspiracy are alleged, the specific case is that petitioner paid the consideration and obtained the cheques from the mediators. True, the allegation is that mediators had no authority to hand over the cheque to the petitioner but even if it is stated that, without authority, mediators handed over the cheque to the petitioner after getting the amount from the petitioner, it cannot be said that petitioner cheated the first respondent. Crl.M.C No.2953 of 2008 5 The cheques were not entrusted to the petitioner . Petitioner did not induce the first respondent to hand over the cheque to the mediators. Though conspiracy is alleged, there was no allegation that when there was a mediation and the petitioner allegedly handed over the cheques entrusted by the first respondent earlier as security, there was a dishonest intention on the part of the petitioner to cheat. The only case is that subsequently after cheques were entrusted with the mediators, petitioner on paying money obtained it from the mediators. Hence on the said allegation even if the case is to be accepted, an offence under Section 420 is not attracted. Therefore, continuance of proceedings as against the petitioner is only an abuse of the process of court. In such circumstances, petition is allowed. Cognizance taken in CC No.137/2008 on Annexure-A1 complaint as against the petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE ma