Madras High Court
Unknown vs Babu Unnikrishnan on 7 July, 2022
Crl. O.P. No. 4489 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.07.2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No. 4489 of 2022 &
Crl.M.P.Nos.2316 & 2318 of 2022
1. M/s.Kripa Agencies,
Rep. by is Partner/Authorized Signatory,
Mr.Karunmathulla Mathew,
No.15, Infantry Road Cross, 2nd Floor,
Bangalore – 560 001.
2. Mr.Karunmathulla Mathew,
Partner/Authorized Signatory,
M/s.Kripa Agencies,
No.15, Infantry Road Cross, 2nd Floor,
Bangalore – 560 001.
3. Mr.Harish Abraham,
Partner,
M/s.Kripa Agencies,
No.15, Infantry Road Cross, 2nd Floor,
Bangalore – 560 001.
4. Mrs.Aneet Jose,
Partner,
M/s.Kripa Agencies,
No.15, Infantry Road Cross, 2nd Floor,
Bangalore – 560 001.
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Crl. O.P. No. 4489 of 2022
5. Mrs.Mariam Mathew
Partner,
M/s.Kripa Agencies,
No.15, Infantry Road Cross, 2nd Floor,
Bangalore – 560 001. . . . Petitioners
Versus
Babu Unnikrishnan
Proprietor of M/s.Kris Fine Liners,
41-1/144A, Rangamoopan Street,
Near Panchayat Office,
Vedapati Post, Coimbatore – 641 007. . . . Respondent
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
call records in C.C.No.622 of 2019 on the file of the learned Judicial
Magistrate, FTC.II, Coimbatore and quash the same.
For Petitioners : Mr.S.J.Ravikumar
For Respondent : Mr.C.Arunkumar
ORDER
This Criminal Original Petition has been filed to quash the private
complaint in C.C.No.622 of 2019 on the file of the learned Judicial Magistrate,
FTC No.II, Coimbatore under section 138 of the Negotiable Instruments Act.
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Crl. O.P. No. 4489 of 2022
2. The main contention of the learned counsel for the petitioners is that
the cheque which has been given to the respondent as a security has been
misused by the respondent and the same has been presented in the bank for
encashment. Hence submitted that the present complaint is nothing but abuse
of process of law and prayed to quash the same.
3. At the outset, this Court is of the considered view that when a
complaint is filed under Section 138 of the Negotiable Instruments Act, this
Court cannot go into the question of fact as to the validity of the issuance of
cheque and whether the cheque has been issued towards a legally enforceable
debt or not. Further the matter of discharge has to be proved before the trial
Court. Those issues are factual and triable issues, which have to be decided
only by way of a full fledged trial and not otherwise under Section 482 of Code
of Criminal Procedure. In STATE OF HARYANA AND OTHERS Vs.
BHAJANLAL AND OTHERS 1992 Supp (1) Supreme Court Cases 335, the
Hon'ble Supreme Court has held that the power of quashing a criminal
proceeding should be exercised very sparingly and with circumspection. In
such a view of the matter, quashing of the case cannot be considered, at this
point of time. At this stage, the learned counsel appearing for the petitioners
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Crl. O.P. No. 4489 of 2022
sought indulgence of this Court to dispense with their personal appearance
before the trial Court.
4. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected Criminal Miscellaneous Petitions are closed. It is for
the petitioners to take all their defence before the trial Court. The accused are
directed to appear before the trial Court within two weeks from the date of
receipt of a copy of this order and file an application under Section 436 of Code
of Criminal Procedure. On such filing of the application, trial Court is directed
to release the petitioners on bail on the same day on executing a bond for a sum
of Rs.10,000/- (Rupees Ten thousand only) each with two sureties. If thereafter,
they absconds, a fresh FIR can be registered under Section 229 A of the Indian
Penal Code. In view of the submission of the learned counsel for the
petitioners, the personal appearance of the petitioners is dispensed with except
for questioning under section 313 Cr.P.C. and on the date of pronouncing
judgment and on any other dates as fixed by the trial Court. The trial Court is
directed to expedite the trial and dispose of the case expeditiously.
07.07.2022
vrc
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Crl. O.P. No. 4489 of 2022
Index : Yes / No
Internet: Yes
Speaking/non speaking order
To
The Judicial Magistrate,
Fast Track Court No.II,
Coimbatore.
Crl.O.P.No.4489 of 2022
and
Crl.M.P.Nos.2316 & 2318 of 2022
N.SATHISH KUMAR, J.
Today the matter is listed before this Court under the caption “For Being
Mentioned”.
2. It is stated by the learned counsel for the petitioners that the 5th
accused herein has already executed the bond and the accused 2,3,4 will
execute the bond and file an application under Section 436 of Cr.P.C. The
learned counsel for the respondent has also not disputed the fact that A5 has
already executed the bond.
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Crl. O.P. No. 4489 of 2022
N.SATHISH KUMAR, J.
shk
3. In such view of the matter, the fourth paragraph of the order in
Crl.O.P.No.4489 of 2022 and Crl.M.P.Nos.2316 & 2318 of 2022 dated
07.07.2022 is read as follows:
“4. Accordingly, this Criminal Original Petition is
dismissed. Consequently, connected Criminal
Miscellaneous Petitions are closed. It is for the petitioners
to take all their defence before the Trial Court. The
accused 2, 3, 4 shall appear before the Trial Court on the
next hearing date and file an application under Section
436 of Cr.P.C. On such filing of the application, the Trial
Court is directed to release the petitioners 2, 3, 4 on bail
on the same day on executing a bond for a sum of
Rs.10,000/- ( Rupees Ten Thousand Only) each with
two sureties. If thereafter, they absconds, a fresh FIR can
be registered under Section 229 A of the Indian Penal
Code. In view of the submission of the learned counsel for
the petitioners, the personal appearance of the petitioners
is dispensed with except for questioning under Section
313 Cr.P.C., and on the date of pronouncing judgment
and on any other dates as fixed by the Trial Court. The
Trial Court is directed to expedite trial and dispose of the
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Crl. O.P. No. 4489 of 2022
case expeditiously.”
4. The other portions are unaltered.
5. Accordingly, this petition is clarified.
21.07.2022
shk
Note: Registry is directed to carry
out necessary amendment and
issue a fresh order copy.
Crl.O.P.No.4489 of 2022
and
Crl.M.P.Nos.2316 & 2318 of 2022
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