REV FATHER JOSEPH MUNDASSERY Vs. MICHAEL

JUDGEMENT

(1.) This is a petition under Section 482 of the Code of Criminal Procedure filed by the first accused in C.C. 675/2004 pending before the Judicial First Class Magistrate Court, Chavakkad, seeking an order to quash the complaint, copy of which is marked as Annexure A. The first respondent herein is the complainant before the trial court. The allegation in this petition is that by the averments in the complaint, no offence under Section 420 read with 34 IPC as alleged in the complaint is disclosed. Therefore, the learned Magistrate should not have taken cognizance of the offence. I have heard Advocate Sri. P.C. Sarath, learned counsel appearing for the petitioner and perused the complaint. By the averments in the complaint, it is seen that the first respondent was a contractor of a hospital building constructed by the petitioner and that amounts were due from the petitioner to the first respondent in discharge of which two cheques were issued. When presented for collection, the cheques were dishonoured with reasoning "drawer's signature differs". At any stretch of imagination, 1 don't find any material in the complaint that would constitute an offence under Section 420 read with 34 I.P.C. because there was no delivery of property at the time of issuing cheque or that there was any inducement. On the other hand cheques were issued in discharge of an existing liability. Probably, there may be offence under Section 138 of the negotiable Instruments Act for which the complaint should have been filed as prescribed under the Negotiable Instruments Act. The dispute between the petitioner and the first respondent is of a civil nature. Even if it is assumed that amounts were due from the petitioner to the first respondent and in discharge of the same, the cheques in dispute were issued and it was dishonoured, irrespective of the reason for dishonour, it would not constitute any offence under Section 420 IPC. The learned Magistrate took cognizance without noting this aspect. Therefore, the petitioner is justified in rushing to this Court with this petition. I find that the complaint before the trial court is liable to be quashed. Otherwise there would be miscarriage of justice.