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S.USHA KUMARI (HEAD NURSE) versus STATE OF KERALA, REPRESENTED BY

High Court of Kerala

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S.USHA KUMARI (HEAD NURSE) v. STATE OF KERALA, REPRESENTED BY - Crl MC No. 1182 of 2007 [2007] RD-KL 10119 (12 June 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 1182 of 2007()

1. S.USHA KUMARI (HEAD NURSE),
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY
... Respondent

2. L.SREEKUMARI,

For Petitioner :SRI.M.BALAGOVINDAN

For Respondent :SRI.GOPAKUMAR R.THALIYAL

The Hon'ble MR. Justice R.BASANT

Dated :12/06/2007

O R D E R

R.BASANT, J.

Crl.M.C.No.1182 of 2007

Dated this the 12th day of June 2007

O R D E R

The petitioner is the first accused in a prosecution under Section 420 I.P.C. She faces the prosecution along with her husband, the second accused. Prosecution has been initiated against her and her husband on the basis of a private complaint filed by the second respondent herein.

2. The case has had a chequered history by now. Initially, the complainant had filed the complaint against the petitioner alone, alleging commission of the offence punishable under Section 420 I.P.C and Section 138 of the Negotiable Instruments Act.

3. The cheque is for an amount of Rs.2,00,000/-. The complainant is a nursing assistant. The petitioner is a head nurse. The cheque was allegedly issued for the discharge of a liability in a transaction between the petitioner and the respondent/complainant. The cheque was returned with the endorsement that the signature varies and payment has been stopped by the accused. The complainant had initially assumed Crl.M.C.No.1182/07 2 that the petitioner had deliberately affixed her signature differently and had issued stop payment memo to defraud the complainant. It was thus that the complaint was filed. The learned Magistrate, as per order dated 09/11/2003, took the view that no offence under Section 420 I.P.C is revealed. He issued process only for the offence under Section 138 of the Negotiable Instruments Act.

4. Cognizance in that case was taken and the case was registered on 20/12/2003. The matter dragged on for a long period of time. Witnesses were examined. When the bank manager was examined, the complainant allegedly realised that really she had been taken for a ride and that the cheque was not drawn on an account maintained by the petitioner. The account was one maintained by her husband. The petitioner had signed the cheque and handed over the cheque as if it were a cheque drawn on her account. Stop payment memo was issued also. In these circumstances, the complainant filed a petition before the learned Magistrate under Section 257 Cr.P.C seeking permission to withdraw the case under Section 138 of the Negotiable Instruments Act. A petition was filed in which it was clearly Crl.M.C.No.1182/07 3 averred that in view of the realisation of the true facts, the complainant has been advised that a proper complaint under Section 420 I.P.C against the petitioner and her husband must be filed. It is accepting such petition that the order under Section 257 Cr.P.C dated 4/1/2007 was passed.

5. Thereafter, the complainant filed the present complaint against the petitioner and her husband. The learned Magistrate has referred the complaint to the police under Section 156(3) Cr.P.C. A crime has been registered. Investigation is in progress. The petitioner apprehends arrest. It is, in these circumstances, that the petitioner has come before this court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the subsequent complaint.

6. Various reasons have been urged. First of all, it is contended that the earlier complaint under Section 420 I.P.C has been virtually dismissed by the learned Magistrate, as per order dated 09/11/2003. Cognizance has not been taken. A second complaint on the same facts is not maintainable. It amounts to review. Powers under Section 482 Cr.P.C must hence be invoked against such entertainment of a later second complaint Crl.M.C.No.1182/07 4 without challenging the order of dismissal in the earlier complaint.

7. Secondly and alternatively, it is contended that the complainant having withdrawn the earlier complaint under Section 138 of the N.I. Act after a long fight, the filing of the subsequent complaint amounts to abuse of the process of the court. The learned Magistrate should not have entertained the second complaint, the earlier complaint having been withdrawn and the accused having been acquitted under Section 138 of the Negotiable Instruments Act in accordance with Section 257 Cr.P.C.

8. I have considered the submissions made at the bar. The first question to be decided is whether a second complaint on the same facts is maintainable or not. The question has been considered by a three Judges Bench of the Supreme Court in M ahesh Chand vs. B.Janardhan Reddy [AIR 2 003 SC 702]. The quintessence of the law has been stated in paragraph 19 in the following words.

"It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Sec.204 Crl.M.C.No.1182/07 5 Cr.P.C may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced"

9. In the instant case, the learned Magistrate was not apprised of the precise nature of the allegation which is revealed now in the second complaint. Nay, even the complainant was not aware of the dimensions of the fraud played on her when she filed the first complaint. I am certainly of the opinion that the dictum extracted above when applied to the facts of the case, the second complaint must be held to be perfectly maintainable. In the earlier complaint, the allegation was that the signature was put differently by the petitioner whereas in the course of the proceedings, it was revealed that an altogether different modus operandi was adopted by the petitioner and it was a case of her using the cheque leaf of her husband to defraud the complainant. I shall not refer to facts in any greater detail lest it may Crl.M.C.No.1182/07 6 prejudice the interests of either party. Suffice it to say that I find absolutely nothing warranting invocation of the jurisdiction under Section 482 Cr.P.C.

10. Next comes the contention regarding withdrawal of the prosecution under Section 138 of the Negotiable Instruments Act. There is no abuse of process of court at all. The withdrawal was on the basis of a petition for withdrawal filed by the complainant in which all the relevant facts have been narrated in detail. It was made clear that the withdrawal was being ought to facilitate the filing of a fresh complaint against the petitioner and her husband. In any view of the matter, there is no abuse of process of the court at all.

11. Powers under Section 482 Cr.P.C are to be invoked only sparingly and in exceptional cases. Such invocation can be only in aid of justice. The boot appears to be on the other leg in this case. The interests of justice eminently demand that the later order taking cognizance on the second complaint should not at all be disturbed. The course adopted by the learned Magistrate, does according to me, eminently serve the ends of justice. Crl.M.C.No.1182/07 7

12. It follows from the above discussions that this petition deserves to be dismissed. I do so.

13. The learned counsel for the petitioner finally submits that there may be directions issued in favour of the petitioner enabling her to surrender before the learned Magistrate. The lesser relief of issue of directions under Section 438 Cr.P.C may be issued in favour of the petitioner, it is prayed.

14. I am not persuaded to accept that request in toto. However, I take note of the fact that the petitioner is a woman. I need only observe that the petitioner can appear before the learned Magistrate and seek bail in the regular and ordinary course. If she surrenders before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. This Criminal Miscellaneous Case is, in these circumstances, dismissed with the above observations.

(R.BASANT, JUDGE)

jsr Crl.M.C.No.1182/07 8 Crl.M.C.No.1182/07 9

R.BASANT, J.

CRL.M.CNo.

ORDER

21ST DAY OF MAY2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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