HUSSAIN B.M. Vs. STATE OF KERALA

JUDGEMENT

(1.) In the proceedings on hand, the accused in S.T. No. 112/2018, a prosecution pending on the files of Judicial First Class Magistrate Court-II (Additional Munsiff Court, Irinjalakkuda) has sought for quashing Annexure A1 complaint. S.T. No. 112/2018 is a prosecution launched by the 2nd respondent before the Court mentioned above under Section 142 of the Negotiable Instruments Act, 1881 (for short, the N.I. Act).

(2.) The allegation in S.T. No. 112/2018 was to the following effect: The 2nd respondent and the petitioner were known to each other and the latter borrowed a sum of Rs. 2,50,000/- from the former. When the amount was demanded back a cheque was issued, which on presentation was bounced for the reason, 'payment stopped by the drawer'. Lawyer notice was caused to be served seeking repayment of Rs. 2,50,000/- within 15 days. The accused failed to repay the amount and thereupon the complaint was filed to launch the prosecution. A copy of the complaint filed to launch the prosecution is appended to this proceedings as Annexure A1. Annexure A2 is another complaint filed by the very same lady, Smt. Vineetha as complainant against the petitioner herein and one Biji Anilkumar alleging commission of offences by them under Sections 420, 406 and 120(B) read with Section 34 of the Indian Penal Code. Allegations are made in Annexure A2 to the effect that the complainant was working as Estate Organiser in Pearls India Limited (PACL) and the 1st accused, Smt. Biji Anilkumar was transacting as Managing Adviser and the 2nd accused, the petitioner herein was the owner of an agency by name B.M. Agencies, dealing with direct sale of BSNL products. It is alleged that the 1st accused, Smt. Biji Anilkumar had made the complainant to believe that deposit of Rs. 20 Crores could be made by her in Pearl Group of Companies and on depositing the same, Smt. Vineetha, the complainant would receive commission. Accordingly, Rs. 9 lakhs as demanded by Smt. Biji Anilkumar, the 1st accused from Smt. Vineetha was advanced by her on 10.8.2012 and 18.10.2012 as Rs. 5 lakhs and Rs. 4 lakhs respectively. It was agreed that on demand being made, the said sum would be repaid. But, after getting the amount, the 1st accused Smt. Biji Anilkumar failed to remit the TDS amount in the company. When enquired it was found that Smt. Biji Anilkumar along with the petitioner herein had cheated the complainant. Later, C.M.P. No. 6774/2013 was filed before the Judicial First Class Magistrate Court, Irinjalakkuda and it was forwarded to the police for investigation under Section 156(3) of Cr.P.C. A crime was registered on it's basis and investigation was pursued with. In the course of investigation, both accused, i.e., Smt. Biji Anilkumar and the petitioner in the prosecution on hand were called at the police station and a settlement was arrived at, pursuant to that, two cheques each for Rs. 2,50,000/- were given to Smt. Vineetha, and one among those, allegedly presented before the Bank was returned bounced for the reason 'payment stopped by the drawer.'

(3.) The contention of Sri. P.K. Sajeev, the learned counsel for the petitioner was that discussion had been made in Annexure A2 complaint regarding two cheques and the circumstances in which those have been issued. According to him, in Annexure A1 complaint, filed to launch the prosecution under Section 138 of the N.I. Act, the complainant has dealt with a cheque issued by the petitioner herein for a sum of Rs. 2,50,000/- and the bouncing of the same for the reason, 'payment stopped by the drawer'. According to the learned counsel, the cheque discussed in Annexure A2 as bounced is the very same cheque on the basis of which the prosecution had been launched under Section 138 of the N.I. Act and therefore, the transaction ought to have been alleged in Annexure A1 as stated in Annexure A2. In Annexure A1, the transaction was alleged as borrowal of a sum of Rs. 2,50,000/- where as in Annexure A2, the transaction alleged is a totally different one. Accordingly, the learned counsel submits that the complainant has deviated from the transaction as pleaded in Annexure A2 and stated repayment of the borrowed sum as the consideration behind issuance of the disputed cheque in Annexure A1 and therefore, the proceedings therein are liable to be quashed.