High Court Kerala High Court

Vijayakumar vs State Of Kerala on 7 April, 2010

Kerala High Court
Vijayakumar vs State Of Kerala on 7 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3088 of 2008()


1. VIJAYAKUMAR, S/O.LATE NARAYANA PILLAI,
                      ...  Petitioner
2. AMBIKA KUMARY, W/O.LATE NARAYANA PILLAI,

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. JOSEPH THOMAS, LEELA BHAVANAM,

                For Petitioner  :SRI.P.B.SURESH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :07/04/2010

 O R D E R
             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