IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 Crl.MC.No. 2356 of 2008() ------------------------------------ STC.4484/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER/ACCUSED ---------------------------------- MUNEER BANGODE, S/O.ABDULLA B.K., B.K. HOUSE, BANGODE P.O., THALANGARA, KASARAGODE DISTRICT. BY ADV. MR.SIJI ANTONY RESPONDENTS/COMPLAINANT ----------------------------------------------- 1. K. AJITH, S/O.KUNHIRAMAN, AGED 32 YEARS, RESIDING AT THALAPURATH HOUSE, P.O.CHALAD, KANNUR - 14. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/03/2010, ALONG WITH CRMC NO. 2359 OF 2008, CRMC NO. 2357 OF 2008 AND CRMC NO. 2776 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2356 of 2008 ORDER ON CRL.MA.NO.3346/2008 IN CRL.MC.NO.2356/2008 DISMISSED 02/03/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2356/08, 2357/08, 2359/08 & 2776 OF 2007 =========================== Dated this the 2nd day of March,2010 ORDER Petitioners are the respective accused in S.T.C.4484/2006, 4490/2006, 4483/2006, 4457/2006 on the file of Judicial First Class Magistrate's Court-I, Kannur taken cognizance for an offence under section 138 of Negotiable Instruments Act on a complaint filed by the very same complainant who is the first respondent in Crl.M.C.2356/2008, 2357/2008, 2359/2008 and the second respondent in Crl.M.C.2776/2007. Learned Magistrate had taken cognizance of the offence under section 138 of Negotiable Instruments Act on the respective complaints filed by the first respondent. These petitions are filed under section 482 of the Code of Criminal Procedure Crl.M.C.2356, 2357,2359/08 & 2776/07 2 to quash the cognizance taken contending that the cheques were not issued to the complainant before the learned Magistrate but to Suresh,the third respondent in Crl.M.C.2776/2007 in respect of purchase of vehicles on hire purchase from fourth respondent M/s.Imnaz Motors and Services Ltd. Petitioners in Crl.M.C.2356/2008, 2357/2008 and 2359/2009 respectively instituted O.S.230/2006, O.S.233/2006 and O.S.231/2006 before Munsiff's Court, Kasaragod seeking a decree for mandatory injunction directing the Managing Director, M/s.Shoubhagya Laxmi Finance Pvt. Ltd to return the signed cheque leaves, handed over by them, towards the hire purchase agreement contending that entire liabilities were cleared. Petitioner in Crl.M.C.2776/2007 had instituted O.S.232/2006 for the same relief against respondents 3 and 4. Learned Munsiff granted a decree for mandatory injunction in all the cases directing the Managing Director M/s.Shoubhagya Laxmi Finance Ltd to return the cheque leaves. The dishonoured cheques involved in all these cases, are one of the cheque Crl.M.C.2356, 2357,2359/08 & 2776/07 3 leaves so directed to be returned to the respective plaintiffs. It is on that ground petitioners sought to quash the proceedings contending that the cheques were in fact not issued to the complainant before the learned Magistrate but to M/s.Shoubhagya Laxmi Finance Pvt. Ltd and that too towards security of the liability under the hire purchase agreements. 2. Though notice was served on the first respondent in Crl.M.C.2356/2008, 2357/2008 and 2359/2008 and the second respondent in Crl.M.C.2776/2007, he did not appear. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Though ordinarily a complaint taken cognizance for an offence under section 138 of Negotiable Instruments Act is not to be quashed on a petition filed under section 482 of the Code of Criminal Procedure based on the contention that the dishonoured cheque was not issued towards discharge of a legal liability to the complainant Crl.M.C.2356, 2357,2359/08 & 2776/07 4 and was issued to another in respect of another transaction, the facts of these cases are entirely different. Petitioners in all these cases instituted separate suits, before Munsiff Court, Kasaragod contending that the cheques referred to in the respective suits, including the dishonoured cheques involved in these cases were, handed over to M/s.Soubhagya Laxmi Finance Pvt. Ltd, Kannur Office as security for the purchase of vehicles on hire purchase. The respective judgments of the learned Munsiff establish that the suits were decreed accepting the case of the petitioners herein and the mandatory injunction was granted directing M/s.Soubhagya Laxmi Finance Pvt. Ltd to handover the respective cheques including the dishonoured cheques in this case. Though it is possible that such a suit in collusion could be instituted, it is to be born in mind that petitioners are all residents at Kasaragod and the complainant is a resident of Kannur where M/s.Soubhaghya Finance Pvt. Ltd is functioning. The complaint does not disclose how the complainant Crl.M.C.2356, 2357,2359/08 & 2776/07 5 happened to grant a loan to the petitioners, who are in Kasaragod. When these relevant facts are appreciated, in the light of the decree obtained by the petitioners, it can only be found that those cheques were not issued to the complainant but to M/s.Soubhaghya Laxmi Finance Pvt. Ltd as found in the respective suits. That could only be the reason why the first respondent did not appear or contest the case. In such circumstances, continuation of the proceedings is only an abuse of process of the court. Crl.M.C.Nos.2356/08,2357/08, 2359/08 & 2776/07 are allowed. S.T.4484/2006, 4490/2006, 4483/2006, 4457/2006 on the file of Judicial First Class Magistrate's Court-I, Kannur are quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006