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2023 Supreme(Online)(KER) 27736
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
1944
CRL.MC NO. 50 OF 2023
CC 2706/2016 JUDICIAL MAGISTRATE OF FIRST CLASS - XII,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.1:
1
M/S JEEVAN TELECASTING CORPORATION LTD.
THROUGH ITS AUTHORISED REPRESENTATIVE
MRS. SHEEJA SUNNY
(ASSISTANT MANAGER, FINANCE AND ACCOUNTS)
RASHTRADEEPIKA BUILDING, PALARIVATTOM
KOCHI, ERNAKULAM, PIN - 682025
BY ADVS.
RENJITH B.MARAR
LAKSHMI.N.KAIMAL
ARUN POOMULLI
PREETHA S CHANDRAN
ABHIJITH SREEKUMAR
JOSEPH KIRAN D. THEKKEKARA
RESPONDENTS/STATE AND COMPLAINANT:
1
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGHCOURT OF KERALA,
ERNAKULAM, PIN - 682031
2
ASIANET SATELLITE COMMUNICATION LTD.,
THROUGH ITS AUTHORISED REPRESENTATIVE
2A, 2ND FLOOR, LEELA INFOPARK
TECHNOPARK, KAZHAKKOOTTAM
THIRUVANANTHAPURAM , PIN - 695581
BY ADVS
SAJI VARGHESE T.G
SRI. RENJIT GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
A.BADHARUDEEN, J.
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Dated this the 11th day of January, 2023
A complaint can be quashed only when it falls under the categories of cases as per the principles set out by the Supreme Court.
Headnote:
Cheque Dishonour - Quashing of Complaint - Payment of Liability - Abuse of Process - [Section 482 of the Code of Criminal Procedure]
Fact of the Case:
The petitioner, accused in a cheque dishonour case, sought to quash the complaint on the grounds that the liability had been discharged through subsequent payments and that the continuation of the prosecution would be an abuse of process.
Finding of the Court:
The court held that the contention that the liability had been discharged could not be accepted at the pre-trial stage and that the complaint could not be quashed on that basis. The court also held that the allegations in the complaint did not fall within the categories of cases where a complaint can be quashed, as per the principles laid down by the Supreme Court.
Issues: 1. Whether the liability for the dishonoured cheque had been discharged through subsequent payments. 2. Whether the continuation of the prosecution would be an abuse of process.
Ratio Decidendi: The court relied on the principles laid down by the Supreme Court in various cases, which hold that a complaint can be quashed only when it falls under the following categories: (i) Where the allegations do not constitute an offence. (ii) Where the allegations are absurd and inherently improbable. (iii) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary. (iv) Where the complaint suffers from fundamental legal defects.
Final Decision: The court dismissed the petition and held that the complaint could not be quashed.
O R D E R
This petition has been filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A2 complaint in C.C.No.2706 of 2016 on the file of the Judicial First Class Magistrate Court-XII, Thiruvananthapuram. The petitioner is the first accused in the above case.
2. The specific contentions raised by the petitioner to quash the complaint are as under:
A. It is submitted that even if it is assumed that there exists a legally enforceable debt, against which a cheque was issued, and the same was dishonoured, the loss suffered by the 2nd Respondent on account of the same has been made good by subsequent payments as reflected in the Annexure A-3 chart. The liability of the accused persons as far as the cheque no.286955 dated 27.12.2014 for an amount of Rs.5,89,890/- (Rupees Five Lakhs Eighty Nine Thousand Eight Hundred and Ninety only), drawn on the State Bank of Travancore, Kaloor, Ernakulam Branch was paid in full by payment of an amount of Rs.45,00,000/- (Rupees Forty Five Lakhs only) through RTGS mode on 23.03.2016. Therefore, the substratum of the respondent's case does not exist as on today.
B. It is submitted that as the substrate of the
2nd Respondent's case does not exist any longer, continuation of the prosecution against the Petitioner would be nothing but an abuse of the process of the Court. It is submitted that in the present circumstances, quashing of the proceedings in its entirety would only serve the ends of justice.
3. No counter statement has been filed by the second respondent.
4. In the above circumstances, I have perused the complaint. In the complaint, the specific case is that the first accused had business dealings with the company and the second accused is the authorised signatories in charge and the persons responsible for the conduct of the business of the first accused. The further allegation is that the first accused is represented by the second and third accused and the first accused operates a Satellite TV channel under the name “JEEVAN” for the purpose of execution of the channel JEEVAN through the digital cable network of the complaint company in Kerala. In addition to that, both parties entered into an agreement for channel carriage and placement on 20.07.2015 and the complainant performed their part of the agreement and the first accused, in turn, have to pay specific amounts to the complainant company, as agreed upon.
5. The further case is that it is towards payment of the amount the second and third accused being authorised signatories of the first accused had signed and issued cheque for Rs.5,89,890/- and the same got dishonoured.
6. Going by the averments in the complaint, the contention raised by the petitioner that the third accused is only an employee of the company could not be appreciated at the pre-trial stage. Therefore, this contention cannot be found in favour of the petitioner to quash the complaint. Similarly, the learned counsel for the second respondent specifically denied the allegation that the liability of the accused persons insofar as the cheque in question was paid.
7. It is true that bank account showing remittance of some amounts in the account of the complainant could be seen from bank accounts. But it could not be held from the bank statements that the payment was towards the discharge of the cheque amount specifically without examining the Bank Manager and adducing evidence in this regard.
8. It is submitted by the learned counsel for the second respondent that payments were made as per an agreement and the said payments did not cover the liability covered by the cheque in question. If so, the contentions raised by the petitioner should have to be considered by the trial court after adducing evidence and therefore, the present complaint could not be quashed for the said reasons.
9. In the decision reported in [1976 (3) SCC
736], Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi, the Apex Court enumerated the list of cases where an order of the Magistrate issuing
