IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 11 of 2007()
1. SUJATHA SREEKUMAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. N.S.SABU, KAILAS, T/C 3/326,
For Petitioner :SRI.SABU S.KALLARAMOOLA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :30/05/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 11 of 2007
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Dated this the 30th day of May, 2007
O R D E R
The petitioner is the accused in a prosecution under Section
420 I.P.C. Proceedings have been initiated on the basis of a
complaint filed by the respondent herein, admittedly a friend of her
husband. It is alleged in the complaint that the complainant had
advanced an amount of Rs.2,42,000/- to the petitioner and for
discharge of the said liability a cheque was handed over by the
accused to the complainant. Admittedly there are other transactions
between the complainant and the husband of the petitioner and the
husband of the petitioner had issued cheques to the complainant. The
relevant averments appear in paragraph 2, which I extract below for
the sake of clarity in reproduction.
“While demanded the said amount, accused has
issued a cheque bearing No.565071 with corrected date
on 18.2.2005 and instructed to present for collection.
The complainant has noticed the signature on the cheque
which is akin to her husband signature, demanded for a
fresh cheque of the accused. She has managed to believe
the complainant that the said cheque would encash while
present. The complainant has believed the words of the
accused.”
(emphasis supplied)
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2. The petitioner complains that there was no transaction
whatsoever between her and the complainant. The transaction was always
between the husband of the petitioner and the complainant. Annex.I is the
copy of three cheques, all issued by the petitioner’s husband to the
complainant. First of those is the subject matter of the present complaint.
The other two are subject matters of other complaints against the husband of
the petitioner by the complainant. The learned counsel for the petitioner
submits that there is no cogent, specific or reasonable averment which can
attract culpability against the petitioner herein.
3. It is important to ascertain what precisely is the allegation. There
is no specific allegation that the accused made a representation that the
cheque is being issued by her from her account to the complainant. The
complainant could not obviously had assumed so. The other cheques in
Annex.I clearly show that they were also issued by the husband of the
petitioner to the complainant. In fact the averments extracted above would
indicate that the complainant knew even at the time when the cheque was
handed over that the signature in the cheque is that of the husband of the
petitioner. It appears to be improbable and artificial, nay impossible that the
complainant could have entertained any impression on the basis of the
Crl.M.C.No. 11 of 2007
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alleged misrepresentation that the cheque was being issued by the petitioner
in her account to the complainant. Such a possibility does not appear to be
available and the averments extracted above do not at all indicate such an
allegation.
4. The said cheque, it is submitted, was dishonoured by the bank on
the ground that the account is closed. This may justifiably give rise to a
cause of action against the husband under Section 138 of the N.I. Act. I am
at a loss to understand how these allegations can justify any indictment of
the petitioner for the offence under Section 420 I.P.C.
5. Consideration of the totality of circumstances does inevitably lead
the court to the conclusion that the attempt now made by the petitioner is
nothing but a transparent abuse of process of court. I find merit in the
submission that the attempt is made to rope in the petitioner also into the
controversy so that the petitioner and her husband will settle all disputes
under duress.
6. The respondent has filed a statement. He relied on Annex.II,
which only shows that earlier a complaint was withdrawn as compounded.
In that, both the petitioner and her husband were arrayed as accused. The
mere fact that the petitioner had faced such a similar indictment along with
Crl.M.C.No. 11 of 2007
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her husband earlier or that the said case was compounded cannot at all lead
this Court to any interference or perception of indication of culpability of
the petitioner in the present indictment. The interests of justice demand
that this criminal prosecution is put to premature termination by invoking
the powers under Section 482 Cr.P.C.
7. This Crl.M.C. is hence allowed. C.C.No. 149 of 2006 pending
before the Chief Judicial Magistrate Court, Trivandrum against the
petitioner is hereby quashed.
(R. BASANT)
Judge
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