LUCKSON FRANCIS AUGUSTINE Vs. JOLLY ABRAHAM MALAYIL

JUDGEMENT

(1.) ACCUSED in S.T.No.222/12 on the file of the Judicial First Class Magistrate Court -III, Kochi has filed this application for quashing the proceedings under Section 482 of Code of Criminal Procedure.

(2.) IT is alleged in the petition that petitioner has been arrayed as accused in S.T.No.222/12 pending before the Judicial First Class Magistrate Court -III, Kochi which was taken on file on the basis of a private complaint filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. Petitioner is a British citizen and is permanently residing in England since 2002. The respondent complainant has met the petitioner in Manchester, United Kingdom in September 2008 introduced by his relative Mr.Manoj Devasia, another British citizen who mooted a business in Telecom. All the three decided to form a company by name Dune Tele Ltd. with equal share holdings. The respondent complainant was the CEO and Director and 1/3rd share holder in the company with company business visa in United Kingdom. He was running the business in United Kingdom with other two directors since September 2008 till the business stopped trading and liquidated on 10th October, 2010. Dune Tele Ltd till today had unrecovered loss from the supplier over 500,000 pounds (INR 5 crores). The respondent complainant is also a NRI business man (permanent resident of Dubai for last 20 years and Dubai Resident permit holder having businesses in the Gulf and Canada and Dune Tele Ltd and entire transactions between them admittedly took place in United Kingdom). According to the petitioner, there was no enforceable debt subsisting between the petitioner and the respondent and the cheque was not issued in discharge of any legally enforceable debt. Petitioner issued cheque for Rs.43,16,851/ - dated 20.03.2010 drawn on ICICI Bank Ltd., Changanacherry Branch to the first respondent in the capacity of CEO of Dune Tele Ltd. The cheque was issued with a signed agreement of all the three Directors to make settlement to U.K customers if there is any liability in future and this incident happened in Manchester U.K on 5.12.2009. The complainant failed to discharge the duties of the business concern as directed by the petitioner. He along with other Director manipulated company Director's withdrawal accounts and there arose disputes between the Directors. No settlement also effected with creditors. Moreover, private settlement of creditors is called Preferential Payment which is a Criminal offence in England. The U.K Solicitor adviced not to make any settlement payments to any customers as Preferential Payment is a Criminal offence according to Ltd Companies Law in England when the Company was under loss. Due to the dispute between the Directors and on the advice from the company's solicitor Mr.Roger Rubin, petitioner informed the respondent not to submit the cheque issued by the petitioner and stopped payment by him and this was done in March, 2010. Lawyer notice was sent to the complainant to return the cheque as there was no legally enforceable debt. No reply was sent by the complainant before presenting the cheque for collection. The lawyer notice to the accused was sent in an incorrect address in Kerala knowing that petitioner is a permanent resident of England and he knew the permanent address and email address of the respondent. In spite of that, he sent a notice to his Kerala address knowing that it will not be served on him. So, there is no proper service of notice as contemplated under the Act issued. Further, the Company in England was wound up after getting report from the Scotland Yard Police and Warwickshire Police together with Crown prosecution service report that there is no misappropriation or defalcation by Directors of the Dune Tele.Ltd. and the company was wound up and dissolved in January 2014 as per law in England. So, the court at Kochi has no jurisdiction to entertain the complaint and no offence under Section 138 of Negotiable Instruments Act is attracted. The respondent filed false complaint before the Superintendent of Police, Kottayam on 05.01.2012 and after enquiry, the Superintendent of Police was convinced that it was a false claim. Thereafter, he filed the present complaint namely Annexure A4. There is no sufficient ingredients made out to attract the offence and proceeding of the case will amount to abuse of process of court. So, the petitioner has no other remedy except to approach this court seeking the following relief:

(3.) HEARD the Counsel for the petitioner and the first respondent and the learned Public Prosecutor appearing for the second respondent.