IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3652 of 2007()
1. BOSE V.V., AGED 40 YEARS,
... Petitioner
Vs
1. M/S.CHINAR BUILDERS & CONTRACTORS LTD.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.GOPAKUMARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/12/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.3652 of 2007
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Dated this the 6th day of December, 2007
O R D E R
The petitioner now faces indictment in a prosecution for the
offences punishable under Sections 420 and 465 I.P.C. The case
has had a chequered history. The complainant had earlier filed a
complaint under Section 138 of the Negotiable Instruments Act.
Cognizance was taken. Trial commenced. At the fag end of trial,
the complainant was taken by surprise with the defence that the
cheque was not drawn on the account of the accused. Taken
aback by the plea towards the end of trial, the complainant made
an attempt to file an application to incorporate the allegation
under Section 420 I.P.C also. That application was opposed and
evidently the complainant was advised not to further prosecute
that case at all. He withdrew the said complaint under Section
138 of the Negotiable Instruments Act. On the very same date,
he filed a fresh complaint alleging offences punishable under
Sections 420 and 465 I.P.C.
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2. The learned Magistrate, after dismissing the earlier
complaint under Section 138 of the Negotiable Instruments Act,
took cognizance of the offences alleged under Sections 420 and
465 I.P.C against the petitioner in the subsequent complaint filed.
The petitioner has entered appearance. The petitioner has, at
this stage, come before this Court with a prayer that the
prosecution may be quashed invoking the powers under Section
482 Cr.P.C.
3. What is the reason ? The learned counsel for the
petitioner submits that principles underlying Article 20(2) of the
Constitution and Section 300 Cr.P.C must show that this
prosecution against the petitioner is unsustainable and an abuse
of process of the Court. The petitioner is being vexed and
harassed again on identical allegations by a fresh prosecution
launched against him.
4. Having considered the petitioner’s contention in detail,
I am unable to agree with the same. The allegation raised
against the petitioner in the previous prosecution was totally
different and had nothing to do with the allegations presently
Crl.M.C.No.3652 of 2007 3
raised. What was alleged in the previous complaint was only the
offence punishable under Section 138 of the Negotiable
Instruments Act. No elements of the offence under Section 420
was ever alleged or asserted in the previous complaint.
5. The dishonour of the cheque on the ground of
insufficiency of funds and not availing of the opportunities to
avoid the prosecution were the gravamen of the complaint in the
previous case, whereas the present complaint relates to
fraudulent misrepresentation to induce the complainant to part
with the cheque. Though the cheque is the common factor in the
2 cases, I must unhesitatingly hold that the nature, content and
quality of the allegations in the 2 cases are totally different. The
withdrawal and consequent to acquittal of the petitioner in that
previous case under Section 138 of the Negotiable Instruments
Act cannot be held to be bar in any way against the present
prosecution under Sections 420 and 465 I.P.C.
6. This Crl.M.C is, in these circumstances, dismissed. The
learned counsel for the petitioner finally prays that the
petitioner’s right to claim discharge may be protected. Needless
Crl.M.C.No.3652 of 2007 4
to say that the dismissal of this Crl.M.C will not in any way fetter
the rights of the petitioner to claim discharge under Section 245
(2) or 245 (1) Cr.P.C. The petitioner, if he is entitled to such
discharge, can certainly stake the claim for premature
termination of the proceedings by discharge and needless to say
that the learned Magistrate has to consider the same on merits
and in accordance with law and pass appropriate orders.
(R.BASANT, JUDGE)
rtr/-
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