S.T.Veena Vs. Rajesh P.R. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1126009
CourtKerala High Court
Decided OnFeb-10-2014
JudgeHONOURABLE MR. JUSTICE P.UBAID
AppellantS.T.Veena
RespondentRajesh P.R.
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice p.ubaid monday, the10h day of february201421st magha, 1935 crl.mc.no. 5040 of 2013 --------------------------- against cc no.35/2013 pending on the files of jmfc-v, thiruvananthapuram petitioner/1st accused: --------------------- s.t.veena, d/o.shobha, 'shobha nivas', umra219 tc241245/1, jyothipuram lane, valiyashala, chalai p.o., thiruvananthapuram. by adv. sri.suman chakravarthy respondents/complainant & state of kerala: ------------------------------------------ 1. rajesh p.r., s/o.padmanabha pillai, "sree reagam", tc25190-7/4, melethampanoor, thiruvananthapuram-695031.2. the state of kerala, rep. by its public prosecutor, high court of kerala, ernakulam-31. r1 by adv. sri.p.v.anil by public prosecutor smt.seena ramakrishnan this criminal misc. case having been finally heard on1002-2014, the court on the same day passed the following: crl.mc.no. 5040 of 2013 ------------------------ appendix petitioner's exhibits ----------------------- annexure-a: copy of the complaint in cc no.35/13 jfcm, court-v, thiruvananthapuram dated211.2013 annexure-b: copy of the letter dated810/2013 issued from bank of baroda. respondents' exhibits: nil --------------------- //true copy// p.a to judge ab p.ubaid, j.--------------------------------- crl.m.c no.5040 of 2013 -------------------------------- dated this the 10th day of february, 2014 order the petitioner herein is the 1st accused in c.c.no.35/2013 before the judicial first class magistrate court-v, thiruvananthapuram. she is being prosecuted under section 138 of the n.i act, along with her brother, the 2nd accused. the person who made the complaint before the court is the first respondent herein. the prosecution case is that the petitioner herein had borrowed an amount of rs.3 lakhs from the complainant, and in discharge of the said liability her brother the 2nd accused, issued a cheque in favour of the complainant. when he presented the cheque for collection it was bounced due to insufficiency of funds, and inspite of statutory notice, the accused failed to make payment of the cheque amount. the petitioner now seeks an order under section 482 of the code of criminal procedure quashing the complaint as against her, on the ground that even as per the allegations in the complaint, the person crl.m.c no.5040 of 2013 2 who actually issued the cheque in question is the 2nd accused, and so nobody other than the maker of the instrument can be prosecuted under section 138 of the n.i act. the factual situation is covered by a decision of this court in devi v. haridas reported in 2004(3) klt355that only the drawer of the cheque, or the maker of the negotiable instrument can be prosecuted and held liable under section 138 of the n.i act. the definite case of the 1st accused is that the cheque in question was issued by the 2nd accused, and not by the 1st accused. just because, the amount was actually borrowed by the 1st accused, she cannot be prosecuted under section 138 of the n.i act. accordingly, this court finds that the prosecution as against her is liable to be quashed. otherwise it would be an abuse of the judicial process. in the result, this petition is allowed. the complaint as against the petitioner herein under section 138 of the n.i act in c.c.no.35/2013 before the judicial first class magistrate court v, thiruvananthapuram is quashed under section crl.m.c no.5040 of 2013 3 482 of the code of criminal procedure. the petitioner will stand released from prosecution, and the bail bond, if any, executed by her will stand discharged. sd/- p.ubaid judge ab
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE10H DAY OF FEBRUARY201421ST MAGHA, 1935 Crl.MC.No. 5040 of 2013 --------------------------- AGAINST CC NO.35/2013 PENDING ON THE FILES OF JMFC-V, THIRUVANANTHAPURAM PETITIONER/1ST ACCUSED: --------------------- S.T.VEENA, D/O.SHOBHA, 'SHOBHA NIVAS', UMRA219 TC241245/1, JYOTHIPURAM LANE, VALIYASHALA, CHALAI P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS/COMPLAINANT & STATE OF KERALA: ------------------------------------------ 1. RAJESH P.R., S/O.PADMANABHA PILLAI, "SREE REAGAM", TC25190-7/4, MELETHAMPANOOR, THIRUVANANTHAPURAM-695031.

2. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R1 BY ADV. SRI.P.V.ANIL BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1002-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5040 of 2013 ------------------------ APPENDIX PETITIONER'S EXHIBITS ----------------------- ANNEXURE-A: COPY OF THE COMPLAINT IN CC NO.35/13 JFCM, COURT-V, THIRUVANANTHAPURAM DATED211.2013 ANNEXURE-B: COPY OF THE LETTER DATED810/2013 ISSUED FROM BANK OF BARODA. RESPONDENTS' EXHIBITS: NIL --------------------- //TRUE COPY// P.A TO JUDGE ab P.UBAID, J.

--------------------------------- Crl.M.C No.5040 of 2013 -------------------------------- Dated this the 10th day of February, 2014 ORDER

The petitioner herein is the 1st accused in C.C.No.35/2013 before the Judicial First Class Magistrate Court-V, Thiruvananthapuram. She is being prosecuted under Section 138 of the N.I Act, along with her brother, the 2nd accused. The person who made the complaint before the Court is the first respondent herein. The prosecution case is that the petitioner herein had borrowed an amount of Rs.3 lakhs from the complainant, and in discharge of the said liability her brother the 2nd accused, issued a cheque in favour of the complainant. When he presented the cheque for collection it was bounced due to insufficiency of funds, and inspite of statutory notice, the accused failed to make payment of the cheque amount. The petitioner now seeks an order under Section 482 of the Code of Criminal Procedure quashing the complaint as against her, on the ground that even as per the allegations in the complaint, the person Crl.M.C No.5040 of 2013 2 who actually issued the cheque in question is the 2nd accused, and so nobody other than the maker of the instrument can be prosecuted under Section 138 of the N.I Act. The factual situation is covered by a decision of this Court in Devi V. Haridas reported in 2004(3) KLT355that only the drawer of the cheque, or the maker of the negotiable instrument can be prosecuted and held liable under Section 138 of the N.I Act. The definite case of the 1st accused is that the cheque in question was issued by the 2nd accused, and not by the 1st accused. Just because, the amount was actually borrowed by the 1st accused, she cannot be prosecuted under Section 138 of the N.I Act. Accordingly, this Court finds that the prosecution as against her is liable to be quashed. Otherwise it would be an abuse of the judicial process. In the result, this petition is allowed. The complaint as against the petitioner herein under Section 138 of the N.I Act in C.C.No.35/2013 before the Judicial First Class Magistrate Court V, Thiruvananthapuram is quashed under Section Crl.M.C No.5040 of 2013 3 482 of the Code of Criminal Procedure. The petitioner will stand released from prosecution, and the bail bond, if any, executed by her will stand discharged. Sd/- P.UBAID JUDGE ab