Dr.R.N.Baba v. Sheeba

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26-09-2008CORAM:THE HONOURABLE MR. JUSTICE S.TAMILVANAN CRL.O.P.No.3635 of 2007and M.P.No.1 of 2007Dr.R.N.Baba.. Petitionervs.Sheeba .. RespondentPetition filed under Section 482 Cr.P.C, seeking a direction tocall for the records relating to C.C.No.197 of 2006 on the file ofthe District Munsif-cum-Judicial Magistrate, Ambattur and quash thesame. For Petitioner : Mr.A.H.Srikanth For Respondent : Mr.P.SivamaniO R D E RThis petition has been filed under section 482 of the Code ofCriminal Procedure by the petitioner / accused in C.C.No.197 of 2006on the file of the District Musif-cum-Judicial Magistrate, Ambattur,seeking an order to quash the criminal proceeding. 2. Mr.A.H.Srikanth, learned counsel appearing for the petitionersubmitted that the petitioner herein is the Honorary Secretary ofDr.Rabindran's Nalvazhvu Sangam, a registered society, runningHospital at Chennai and he is arrayed as accused in the case inC.C.No.197 of 2006 on a private complaint filed by the respondentherein for the alleged offence punishable under Section 138 ofNegotiable Instruments Act and Section 420 of Indian Penal Code.According to the petitioner, one Haish Naidu, a staff of the Hospitalrun by the petitioner sangam misusing the cheque leaf had issued thecheque for Rs.1,50,000/- drawn on the UTI Bank Ltd., Anna Nagar infavour of the respondent / complainant towards mediclaim premiumpayable to her. While the cheque was presented for payment, it wasreturned by the bank with an endorsement that the signature of theaccount-holder differs, in such circumstances, according to thelearned counsel appearing for the petitioner, the complaint itself isnot maintainable and therefore, he pleaded that the criminal https://hcservices.ecourts.gov.in/hcservices/ proceedings pending against the petitioner before the court below bequashed under Section 482 of the Code of Criminal Procedure. Insupport of his contention, the learned counsel cited the decision,Vinod Tanna vs. Zaher Siddiqui, reported in 2002 (7) SCC 541, whereinthe Hon'ble Supreme Court has held that an incomplete signature willnot attract Section 138 of the Negotiable Instruments Act. 3. According to the respondent, the said cheque was issued onlyby the petitioner for the amount payable to her on account of hermediclaim with the petitioner. The petitioner Dr.R.N.Baba hasadmitted that he is the person authorised to sign the cheque. Even inthe legal notice, the respondent / complainant has specificallystated that the cheque, which was dishonoured by the Bank had beenissued by the petitioner, hence, as per the averments of thecomplaint, it attracts Section 420 IPC. In the instant case, thelearned counsel for the petitioner submitted that the person whosigned the cheque is the Administrator of Dr.Rabindran's NalvazhvuSangam, which runs the Hospital and therefore, at this stage, itcannot be construed by this court that the cheque was issued by astaff of the Hospital without the knowledge of the petitioner bymisusing the cheque leaf, though the authorised signatory is only thepetitioner. 4. It is an admitted fact that the case pending against thepetitioner herein is not merely only under Section 138 of NegotiableInstruments Act, but also under Section 420 IPC and hence, I am ofthe view that the decision cited by the learned counsel for thepetitioner is not applicable to the facts and circumstances of thiscase to quash the criminal proceeding, pending against thepetitioner. 5. It is not in dispute that cheating and dishonestly inducingdelivery of property is sufficient to attract Section 420 IPC. InR.S.Nayak vs. A.R.Antulay, reported in 1986 (2) SCC 716, the Hon'bleSupreme Court has held at page number 768 as under :"68. Section 415 actually consists of two parts,each part dealing with one way of cheating :1. Where, by deception practised upon a personthe accused dishonestly or fraudulently inducesthat person to deliver property to any person orto consent that any person shall retain anyproperty;2. Where, by deception practised upon a person,the accused intentionally induces that person todo or omit to do anything which he would not door omit to do, if he were not so deceived andwhich act or omission causes or is likely tocause damage or harm to that person in body,mind, reputation or property." https://hcservices.ecourts.gov.in/hcservices/ Wherein it was ruled by the Hon'ble Apex Court that prima facie casewas made out against the accused by the prosecution in respect of theallegations for the charges under Sections 120 B and 420 IPC, apartfrom other sections, but the trial court had failed to framenecessary charges for the trial of the case and therefore, chargeunder Section 420 IPC should be framed by the trial court against theaccused therein.6. In the case on hand, as per the complaint filed by therespondent before the trial court, there are averments andallegations against the petitioner / accused in order to attractSections 138 of Negotiable Instruments Act and 420 IPC. It is anadmitted fact that the cheque that was dishonoured had been issued inthe cheque leaf of the petitioner herein towards the payment ofmediclaim to the respondent, who underwent treatment in the hospitalrun by the petitioner. Whether the cheque was issued by the staff ofthe hospital with the knowledge of the petitioner or not is yet to bedecided, based on the evidence to be adduced. Hence, there is a primafacie case and as such, there is no illegality to quash theproceedings at this stage under Section 482 Cr.P.C.7. Had the case been initiated only under Section 138 ofNegotiable Instruments Act, the petitioner could have advanced hisargument that the criminal proceeding is not maintainable againstthe petitioner, by relying on the decision cited above. As contendedby the learned counsel for the respondent, the court below has todecide the alleged offence against the petitioner, both under Section138 of Negotiable Instruments Act and Section 420 IPC, based on theevidence, as there is a case made out against the petitioner to betried on merits.8. There is a prima facie case against the petitioner and thereis a clear allegation of offence against the petitioner under Section420 IPC, apart from Section 138 of Negotiable Instruments Act, evenas per the legal notice issued by the respondent, prior to the filingof the complaint. Hence, I am of the view that it is not a fit caseto invoke Section 482 of the Code of Criminal Procedure and quash theproceedings. As contemplated under Section 482 of the Code ofCriminal Procedure, this Court is vested with the inherent power tomake such orders, as may be necessary to give effect to any orderunder the code or to prevent abuse of the process of any court,subordinate to this Court and to secure the ends of justice. Theinherent power of this court vested under Section 482 of the Code ofCriminal Procedure is only to prevent the abuse of process of thecourt and to meet the ends of justice and not otherwise. In theinstant case, I could find no such circumstances to invoke Section482 Cr.P.C and quash the criminal proceeding, pending in C.C.No.197of 2006 on the file of the District Munsif-cum-Judicial Magistrate,Ambattur, since there is prima facie case made out against thepetitioner. https://hcservices.ecourts.gov.in/hcservices/

9. It is not in dispute that in a criminal case, the burden ofproof is on the prosecution to prove the case against the accusedbeyond all reasonable doubts and the benefit of doubt should be givento the accused. However, to quash a criminal proceeding under Section482 Cr.P.C, there should be material available to establish thatthere is no prima facie case made out against the petitioner toprosecute him before the court below. In Mushtaq Ahmed vs. MohdHabibur Rehman Faizi and others reported in 1996 (7) SCC 440, it hasbeen held that when a prima facie case of cheating is made out, thecriminal proceedings cannot be quashed by the High Court, by decidingwhich of the rival version was true. On the facts and circumstancesof this case, as there is prima facie case made out against thepetitioner, I am of the view that the criminal proceedings, pendingbefore the court below cannot be quashed at this stage by invokingSection 482 of the Code of Criminal Procedure. 10. In the result, the Criminal Original Petition fails andaccordingly, the same is dismissed. Consequently, connectedmiscellaneous petition is also dismissed. However, considering thefacts and circumstances, the court below is directed to dispose thecase on merits and in accordance with law, within a period of fivemonths from the date of receipt of a copy of this order. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsvnTo1. The District Munsif-cum-Judicial Magistrate Ambattur.2.-Do- Thro' The Chief Judicial Magistrate, Tiruvallur.3. The Public Prosecutor High Court, Chennai.1 CC To Mr.A.H.Srikanth , Advocate, SR NO.55467 CRL.O.P.No.3635 of 2007ms(co)pmk/4.11.2008.