IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3267 of 2006()
1. B. JAYAN BABU, KYLASAM,
... Petitioner
2. B. BABU, KYLASAM, THEKKINMOODU,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SAJI DANIEL, MULAMOOTTIL HOUSE,
For Petitioner :SRI.S.M.PREM
For Respondent :SRI.LATHEESH SEBASTIAN
The Hon'ble MR. Justice R.BASANT
Dated :03/01/2007
O R D E R
R. BASANT, J.
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CRL.M.C.NO.3267 OF 2006
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Dated this the 3rd day of January, 2007
ORDER
Against the petitioners a private complaint was filed by
the respondent/complainant. The crux of the allegations is
that the petitioners made false representations before the
complainant and induced him to accept a post dated cheque.
They had no serious intention to honour the cheque. They
had with fraudulent intention induced the complainant to
receive the cheque. Before the date fixed for presentation of
the cheque, the account was closed by the petitioners with
fraudulent and objectionable motives. On 20/3/2005 when the
cheque was presented, it was returned dishonoured on the
ground that the account is closed. The private complaint filed
by the complainant was referred by the learned Magistrate to
the police. The police have registered a crime. Investigation
is in progress. The petitioners have now come before this
Court with the prayer that the powers under Sec.482 of the
Cr.P.C. may be invoked and the F.I.R. registered and the
investigation which has commenced may be quashed.
CRL.M.C.NO.3267 OF 2006 -: 2 :-
2. The learned counsel for the petitioners submits that
there was no fraudulent intention at all when the cheque was
handed over. After handing over of the cheque, the petitioners
were compelled to close the account on account of reasons
beyond their control. In these circumstances, there is no
element of culpability and no ingredient of the offence of
cheating is revealed, it is contended. The petitioners may be
saved of the trauma of vexatious criminal proceedings against
them, it is prayed.
3. The respondent/the de facto complainant opposes the
application. The learned counsel submits that the sequence of
events would clearly suggest that the petitioners, who closed the
account without even intimating the complainant after the date
of the cheque, were acting with fraudulent and culpable
intention.
4. It is too early for this Court to hazard an authentic
opinion on the question whether the closing of the account was
done with any fraudulent, contumacious or culpable intention.
Certainly, all the relevant facts will have to be collected by the
CRL.M.C.NO.3267 OF 2006 -: 3 :-
Investigator in the course of investigation. If at the time when
the cheque was handed over, there was no fraudulent intention
and the petitioners were obliged on account of reasons beyond
their control to close the account, no criminal offence can be
alleged against the petitioners. But whether culpable intention
was there or not at the time when the post dated cheque was
handed over is certainly a matter which will have to be
investigated and facts collected. I find absolutely no reason, at
this stage, to prematurely terminate the investigation against the
petitioners.
5. I find no merit in the contention that the failure or
miscarriage of justice would result. The petitioners can
certainly appear before the learned Magistrate and seek bail. In
the alternative, they can approach the superior courts for grant
of anticipatory bail, if sufficient circumstances exists. The mere
possibility of arrest and continuation of the investigation cannot,
in the facts and circumstances of this case, be reckoned as
amounting to failure or miscarriage of justice to justify the
invocation of the powers under Sec.482 of the Cr.P.C.
CRL.M.C.NO.3267 OF 2006 -: 4 :-
6. This Crl.M.C. is, in these circumstances, dismissed with
the above observations.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge