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.
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Crl.M.C.No.3088 of 2008
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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