SAHADEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed by the first accused in C.C.594/2002 on the file of the Judicial Magistrate of the First Class, Karunagappally. The above case was taken on file on the basis of the final report filed by Chavara Police in Crime 40/2002 alleging commission of offences under S.418, S.420, S.468 and S.34 of the Indian Penal Code. The allegation against the petitioner is that he along with the second accused cheated the de facto complainant by presenting the cheque given as security in the bank and on getting the cheque dishonoured, initiated prosecution proceedings against him under S.138 of the Negotiable Instruments Act.

(2.) According to the petitioner, the de facto complainant is his friend and he borrowed an amount of Rs. 2 lakh from him. When the petitioner demanded back the money, de facto complainant issued cheque and promissory note and when the borrowed amount was not paid the petitioner had to initiate prosecution under S.138 of the Negotiable Instruments Act. Annexure A2 is the copy of the complaint filed by the petitioner in the Court of the Judicial Magistrate of the First Class, Karunagappally. Summons was issued to the de facto complainant and he appeared in Court. According to the petitioner, the accused in the above case filed a false complaint against him and another person for the purpose of compelling him to withdraw the complaint filed by him alleging commission of offence under S.138 of the Negotiable Instruments Act. Petitioner says that the allegations in the final report will not make out the offences alleged to have been committed by the petitioner. The learned counsel appearing for the petitioner would submit that complaint was filed against the petitioner only for the reason that he filed a complaint alleging that the offence punishable under S.138 of the Negotiable Instruments Act was committed by the complainant. The initiation of criminal proceedings against the petitioner, according to him, is done with the intention of tarnishing his image.

(3.) Annexure A2 is the copy of the complaint filed by the petitioner in the Court of the Judicial Magistrate of the First Class, Karunagappally, That complaint was filed on 10/07/2001. The allegation in the complaint is that on 15/02/2001 the accused in that case borrowed an amount of Rs. 2 lakh from the petitioner and issued a cheque. When that cheque was presented for encashment it was returned unpaid for the reason that there was no sufficient amount in the account of the accused on 24/05/2001 petitioner sent and advocate's notice to the accused informing him of the dishonour of the cheque and demanding payment of the amount covered by the cheque. Even after accepting notice the amount was not paid and hence the complaint was filed. The complaint, which led to the registration of the crime against the petitioner, was filed, in January, 2002. The crime was registered on 24/01/2002 and final report was filed on 27/03/2002. Allegation in the complaint filed against the petitioner is in respect of the cheque which, according to the petitioner herein, was issued in his favour by the accused in the other case. The allegation is that the second accused wrote the name of the petitioner and the amount as Rs. 2 lakh and put the date as 15/02/2001 in the cheque and thereby forged the cheque. That is a contention which the de facto complainant in this case can raise in the case against him in which the allegation is that he committed the offence under S.138 of the Negotiable Instruments Act. There is substance in the submission made by the learned counsel appearing for the petitioner that the complaint was filed by the de facto complainant in this case for the purpose of defeating the case taken on file by the Court on the basis of the complaint filed by the petitioner.