Heard the learned counsel for the petitioners and also learned counsel appearing for the respondents.
2. Though this case is listed for Admission today, with the consent of both the parties, the matter is taken up for disposal on merits.
3. This petition is filed under Section 482 of Cr.P.C., seeking for quashing of FIR registered against the petitioners for the offence punishable under Section 420, 504, 506 R/w 34 of IPC.
4. The factual matrix of the case is that there was an agreement between the petitioner and respondent No.2 as regards sale of property for consideration of Rs.60 lakhs out of which an amount of Rs.50,000/- was paid. Sale transaction did not take place. The petitioners herein have agreed to repay amount and issued the cheque. The cheque issued by the petitioners herein is incomplete and the same is not honoured. The complainant has filed complaint dated 20.12.2019 reiterating the same in the complaint and particularly in paragraph No.5 contended that with a dishonest intention, petitioner No.1 issued cheque with incomplete signature and the same was returned with endorsement Drawer signature incomplete. It is also contended that with a dishonest manner, petitioner violated the terms of the sale agreement which leads to criminal breach of trust. Therefore, dishonest inducement is made out. It is also mentioned in the complaint that only with an intention of causing wrongful loss to the complainant with malafide intention, fraudulent motive, issued cheque leaving her incomplete signature. It is also alleged that on 09.12.2019 both the husband and wife reverted against complainant and abused in filthy and vulgar language and used unparliamentary words and gave life threat. Based on the complaint, the police have registered the case.
5. The present petition is filed for quashing of the complaint contending that complainant with an intention to harass the petitioner filed complaint with malafide intention, there was no any ingredients of the offence invoking against the petitioner. The complainant has not made out any grounds with dishonest intention the incomplete cheque was issued and hence, it requires interference of this Court by exercising power under Section 482 of Cr.P.C. The learned counsel for the petitioner in support of his contention also relied upon the judgment of Honble Apex Court in the case of Commissioner of Police and Others v. Devender Anand and Others reported in 2019 SCC Online SC 996 and brought to notice of this Court para No.9 of the judgment with regard to exercising power under Section 482 of Cr.P.C. The learned counsel also relied upon the judgment in Ram Biraji Devi and Another vs. Umesh Kumar Singh and Another reported in (2006) 6 SCC 669 and brought to notice paragraph Nos.9 to 11 with regard to exercising of power under Section 482 of Cr.P.C., for quashing of the petition. Referring the above judgments contend that no prima facie case is made out to prove involvement of the petitioner for commission of alleged offence. The learned counsel also relied upon the judgment of Honble Apex Court in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 brought to the notice of this Court para No.6, wherein the Apex Court made an observation with regard to invoking of Section 420 and also 406 if complainant does not make out a case for invoke the said offence. Merely because of agreement to sale was entered into or it cannot be said that the petitioner has cheated the respondent. The learned counsel referring this judgment would contend that this Court can invoke Section 482 of Cr.P.C., as the complainant has not made out a case to invoke offence against this petitioner.
6. Per contra, learned counsel for the respondent No.2/complainant would submit that there was transaction between the husband and wife and this petitioner and earlier sale transaction between the wife and respondent No.2 was cancelled. This transaction is in respect of different property with wife i.e., respondent No.2 herein and issued the cheque for an amount of Rs.50 lakh which contains incomplete signature of the petitioner No.1 herein. The same was presented and returned with endorsement signature incomplete. The accused not only induced the complainant with dishonest intention but also abused in filthy language and gave life threat. The same has been reiterated in the complaint averment which made out a case for invoking Sections 420, 504 and 506 of IPC. There are no grounds to invoke Section 482 of Cr.P.C., In support of his contention he has relied upon the judgment of Honble Apex Court in the case of Sampelly Satyanarayana Rao vs Indian Renewable Energy Development Agency Limited reported in (2016) 10 SCC
458 and tried to convince this Court with regard to exercise power under Section 482 of Cr.P.C., The matter involved disputed question of fact and the same cannot be decided in a petition under Section 482 of Cr.P.C.,
7. Learned counsel also brought to the notice of this Court order passed in Crl.MC. No.2345/2015 by the Kerala High Court, wherein the Kerala High Court made an observation at para Nos.19 to 21 that mere filing the suits for recovery of the money and complaint filed under Section
138 of the N.I. Act by itself no grounds to quash the proceedings. Even if the case involves breach of contract, if there is an element of cheating and fraud, it is always open for a party to prosecute the other side offences alleged. It also held that power under Section 482 of Cr.PC., to be exercised sparingly if case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process.
8. Having heard the learned counsel for respondent No.2, this Court has to consider the material on record. Having perused the complaint dated 20.12.2019, the specific allegation is made in the complaint with regard to dishonest intention the cheque was issued with incomplete signature and also specific allegation is made in para Nos.8 and 9 that with fraudulent motive, the said cheque was issued. Apart from that an allegation is made that incident was taken on 09.12.2019 that this petitioner abused the complainant in filthy and vulgar language and further threatened the life of the petitioner.
9. Having perused the contents of the complaint, specific allegation was made out for invoking of Section 420, 504 and 506 of IPC and the learned counsel for the petitioners vehemently contend that averments made in the complaint does not attract offences invoked against the petitioners. The said contention cannot be accepted. The principle laid down by Honble Apex Court referring by the learned counsel for the petitioners are with regard to no averments in the complaint for invoking the offences but in the case on hand already referred supra, made clear that specific averments are made in the complaint. When the specific averments are made in the complaint, the quashing of exercising Section 482 of Cr.P.C., does not arise. The judgment referred by the learned counsel for respondent No.2 also discloses that even civil suit is filed and proceedings under 138 of the N.I. Act is filed, the same is not a ground to quash the proceedings. The Court has to take note of averments with regard to dishonest intention act of the petitioners and issued the cheque and specific averments in the complaint. Having referred the principles laid down in the judgments stated supra, it is not a fit case to exercise power under Section 482 of Cr.P.C., to quash the proceedings. When the specific allegation is made in the complaint particularly mentioning dishonest intention and also date of incident abusing and causing threat of life to the complaint, there is no merit in the petition. With the above observation, I pass the following :- O R D E R The petition is dismissed. Sd/- JUDGE