DOMINIC JOSEPH, AGED 55 YEARS, S/O.M.D.JOSEPH, MANNIPPARAMBIL HOUSE, PALAMPRA P.O, KANJIRAPPALLY Vs. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) The petitioner herein is the sole accused in S.T.No.2880/2015 on the file of the Judicial First Class Magistrate Court-I, Kanjirappally, for offence under Sec. 138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2nd respondent herein. Anx.1 is the certified copy of the impugned complaint, which led to the institution of the afore stated S.T.No.2880/2015. The complaint was filed by the 2nd respondent alleging that he had advanced an amount of Rs.9 lakhs to the petitioner with the understanding that the interest chargeable on the said amount will be @ 12% p.a. That the petitioner had agreed to repay the principal amount on 15.6.2015 and the interest on the last date of every English calendar month. That in pursuance of the said loan transaction, the petitioner had issued Anx.II cheque dated 15.6.2015 for amount of Rs. 9 lakhs in favour of the 2nd respondent and the cheque, on presentation by the complainant, has resulted in dishonour for want of sufficient funds. After complying with the statutory formalities, Anx.I complaint was filed before the Judicial First Class Magistrate's Court-I, Kanjirappally, which was taken on file as afore stated S.T.No. 2880/2015. The petitioner asserts that the allegations in Anx.I complainant are incorrect. Further it is stated that the petitioner is a business man, who was conducting the petroleum outlet of M/s. Bharat Petroleum Corporation, in the name, "Mathew Anthraper & Co." in the year 2010 to 2013 and that this is a registered firm. Further that the petitioner had stopped the said business in the year 2013 and the petitioner had no connection with the said firm thereafter. It is further asserted that the cheque, which was presented by the complainant, was issued from the account of the said firm. The account was inoperative from 2013. The complainant has not made the firm a party and he has made only the petitioner as the sole accused. Further the case projected by the petitioner is that Anx.III, which is stated to be statement issued by the bank concerned, would indicate that the account is maintained by the firm and that the petitioner is unnecessarily dragged in the malicious prosecution launched by the 2nd respondent. It is contended that even if the prosecution is allowed to proceed, it would not serve any purpose and it will not end in a successful prosecution. The prime basis of this contention is that since the dishonoured cheque in question has been issued from the account maintained by the partnership firm, the drawer of the cheque is primarily the partnership firm and, therefore, the aspects arising out of Sec. 141 of the Negotiable Instruments Act will come into play and that therefore the principal accused/offender in such a case is only the partnership firm and that without impleading the partnership firm, which is the principal offender, the prosecution is bound to fail, in the light of the legal position laid down by the Apex Court in relation to matters arising out of Sec. 141 of the Negotiable Instruments Act, etc. The petitioner places reliance on the celebrated judgment of the Apex Court in the case Aneeta Hada Vs. Godfather Travels and Tours Pvt. Ltd. reported in (2015) 5 SCC 661, to canvass the above said position. In the light of these aspects, the petitioner has filed the instant Criminal Miscellaneous Case by taking recourse to the extra ordinary powers conferred on this Court under Sec. 482 of the Crimial P.C., with the following prayers;

(2.) Sri. S. Rajeev, learned counsel appearing petitioner accused has made submissions in the light of the contentions and grounds urged in the Crl.M.C.

(3.) After service of notice, the 2nd respondent has entered appearance through his learned counsel, Sri. C. Harindra Mohan Nair. Sri. C.Harindra Mohan Nair, learned counsel appearing for R-2 (complainant) would submit that the above said factual submissions made by the petitioner are wrong and incorrect and further that such factual aspects, which are disputed, cannot ordinarily be entertained in proceedings under Sec. 482 of the Crimial P.C. in the matter of quashment of complaint and that such factual matters are to be raised by the petitioner accused by adducing evidence in that regard in the conduct of the trial in question. Further the learned counsel for R-2 complainant would point out that a mere perusal of impugned Anx.I complaint would show that the specific and focused case of the complainant is that due to the aforementioned loan transaction, the petitioner had personally issued the cheque in question from his S.B. account maintained with the bank concerned in favour of the complainant, etc. Therefore, it is contended that since the specific case of the complainant in the impugned Anx.I complaint is that the cheque in question was issued by the accused, which is relatable to his S.B. Account with the bank concerned, it is not proper for this Court to look into any extraneous materials at this time, to decide as to whether such factual assertion made in the complaint is correct or wrong. For that, the exclusive forum is the trial court in the ordinary scheme of things. Further Sri.C.Harindra Mohan Nair, learned counsel appearing for R-2 complainant, would also submit that, apart from a bald assertion in the Criminal Miscellaneous Case that the prosecution launched is malicious, no extra ordinary facts and circumstances have been pointed out in the pleadings of this Crl.M.C. or by way of any materials on record to even remotely suggest that the complaint in question is malicious or that permitting further conduct of the complaint would result in any grave miscarriage of justice or would perpetrate any serious injustice on the petitioner or that the complaint has been actuated by malice, conceit or fraud, etc. No material particulars to establish any such case even remotely, has been whispered in the Criminal Miscellaneous Case. Therefore, it is urged by the learned counsel appearing for the complainant that, in the light of the legal principles well settled by the Apex Court and by this Court in the matter of regulation of exercise of the high discretionary power conferred under Sec. 482 of the Crimial P.C., this Court may not interfere with the matter, etc. Further, both parties have made available a copy of the reply notice dated 7.9.2015 issued by the petitioner accused in response to the statutory notice dated 18.8.2015 issued by the 2nd respondent complainant in the light of the provisions contained in proviso (b) of Sec. 138 of the Negotiable Instruments Act.