Kerala High Court
Hussain B.M vs State Of Kerala on 28 May, 2019
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941
Crl.MC.No. 3656 of 2019
ST 112/2018 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II
IRINJALAKUDA
PETITIONER/ACCUSED:
HUSSAIN B.M.,
AGED 49 YEARS
S/O MOHAMMED MOITHEEN, BAPPU VEETTIL HOUSE,
KATTUNGACHIRA DESOM, IRINJALKUDA VILLAGE,
MUKUNDAPURAM TALUK
BY ADV. SRI.P.K.SAJEEV
RESPONDENTS/COMPLAINANTS/DEFACTO COMPLAINANTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ENRAKULAM
2 VINEETHA,
AGED 40 YEARS
W/O. LATE SUBHASH, CHATHAMPPILLY HOUSE, COMBARA
DESOM, MANAMALASSERY VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT-680 121
BY SRI.C.N.PRABHAKARAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3656 of 2019
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ORDER
In the proceedings on hand, the accused in S.T.No.112/2018, a prosecution pending on the files of Judicial First Class Magistrate Court-II (Additional Munsiff Court, Irinjalakkuda) has sought for quashing Annexure A1 complaint. S.T.No.112/2018 is a prosecution launched by the 2 nd respondent before the Court mentioned above under Section 142 of the Negotiable Instruments Act, 1881 (for short, the N.I. Act).
2. The allegation in S.T.No.112/2018 was to the following effect:
The 2nd respondent and the petitioner were known to each other and the latter borrowed a sum of Rs.2,50,000/- from the former. When the amount was demanded back a cheque was issued, which on presentation was bounced for the reason, 'payment stopped by the drawer'. Lawyer notice was caused to be served seeking repayment of Rs.2,50,000/- within 15 days. The accused failed to repay the amount and thereupon the complaint was filed to launch the prosecution. A copy of the Crl.MC.No. 3656 of 2019 3 complaint filed to launch the prosecution is appended to this proceedings as Annexure A1. Annexure A2 is another complaint filed by the very same lady, Smt.Vineetha as complainant against the petitioner herein and one Biji Anilkumar alleging commission of offences by them under Sections 420, 406 and 120(B) read with Section 34 of the Indian Penal Code. Allegations are made in Annexure A2 to the effect that the complainant was working as Estate Organiser in Pearls India Limited (PACL) and the 1st accused, Smt.Biji Anilkumar was transacting as Managing Adviser and the 2 nd accused, the petitioner herein was the owner of an agency by name B.M.Agencies, dealing with direct sale of BSNL products. It is alleged that the 1st accused, Smt.Biji Anilkumar had made the complainant to believe that deposit of Rs.20 Crores could be made by her in Pearl Group of Companies and on depositing the same, Smt.Vineetha, the complainant would receive commission. Accordingly, Rs.9 lakhs as demanded by Smt.Biji Anilkumar, the 1st accused from Smt.Vineetha was advanced by her on 10.8.2012 and 18.10.2012 as Rs.5 lakhs and Rs.4 lakhs respectively. It was agreed that on demand being made, the said sum would be repaid. But, after getting the amount, Crl.MC.No. 3656 of 2019 4 the 1st accused Smt.Biji Anilkumar failed to remit the TDS amount in the company. When enquired it was found that Smt.Biji Anilkumar along with the petitioner herein had cheated the complainant. Later, C.M.P.No.6774/2013 was filed before the Judicial First Class Magistrate Court, Irinjalakkuda and it was forwarded to the police for investigation under Section 156(3) of Cr.P.C. A crime was registered on it's basis and investigation was pursued with. In the course of investigation, both accused, i.e., Smt.Biji Anilkumar and the petitioner in the prosecution on hand were called at the police station and a settlement was arrived at, pursuant to that, two cheques each for Rs.2,50,000/- were given to Smt.Vineetha, and one among those, allegedly presented before the Bank was returned bounced for the reason 'payment stopped by the drawer.'
3. The contention of Sri.P.K.Sajeev, the learned counsel for the petitioner was that discussion had been made in Annexure A2 complaint regarding two cheques and the circumstances in which those have been issued. According to him, in Annexure A1 complaint, filed to launch the prosecution under Section 138 of the N.I. Act, the complainant has dealt Crl.MC.No. 3656 of 2019 5 with a cheque issued by the petitioner herein for a sum of Rs.2,50,000/- and the bouncing of the same for the reason, 'payment stopped by the drawer'. According to the learned counsel, the cheque discussed in Annexure A2 as bounced is the very same cheque on the basis of which the prosecution had been launched under Section 138 of the N.I. Act and therefore, the transaction ought to have been alleged in Annexure A1 as stated in Annexure A2. In Annexure A1, the transaction was alleged as borrowal of a sum of Rs.2,50,000/- where as in Annexure A2, the transaction alleged is a totally different one. Accordingly, the learned counsel submits that the complainant has deviated from the transaction as pleaded in Annexure A2 and stated repayment of the borrowed sum as the consideration behind issuance of the disputed cheque in Annexure A1 and therefore, the proceedings therein are liable to be quashed.
4. This Court has a glance at copies of Annexure A1 and Annexure A2 complaints produced alongwith the petition on hand. The proceedings initiated by the complainant Smt.Vineetha through Annexure A1 and Annexure A2 are undoubtedly different ones. Through Annexure A1, a Crl.MC.No. 3656 of 2019 6 prosecution under Section 138 of the N.I. Act was initiated whereas through Annexure A2, prosecution for commission of offences punishable under the Indian Penal Code against the petitioner and another was sought. For the reason that in Annexure A2, the transaction pleaded was different, Annexure- A1 complaint is not liable to be quashed. The petitioner herein could confront the complainant on the basis of the allegations raised by her in Annexure A2 complaint during trial of S.T No.112/2018 and the court below shall not deny such an opportunity to him. The trial in both proceedings necessarily have to be proceeded with. The grounds projected in the application on hand is not a sufficient ground for granting the relief sought by the petitioner.
For the forgoing reasons, the Crl.M.C. stands disposed of.
Sd/-
MARY JOSEPH
JV JUDGE
Crl.MC.No. 3656 of 2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF THE COMPLAINT IN
S.T.112/2018 ON THE FILES OF JUDICIAL
FIRST CLASS MAGISTRATE COURT,
IRINJALAKUDA
ANNEXURE-A2 TRUE COPY OF THE COMPLAINT IN
C.C.1319/2017 ON THE FILES OF JUDICIAL
FIRST CLASS MAGISTRATE COURT,
IRINJALAKUDA
ANNEXURE-A3 TRUE COPY OF THE JUDGMENT DATED
06.12.2018 IN CRL.M.C.3364/2018 OF THIS HONOURABLE COURT