S. KRISHNAMOORTHYversusCHELLAMMAL

                         [2015] 4 S.C.R. 182



A                      S. KRISHNAMOORTHY

                                   v.

                           CHELLAMMAL
B
                 (Criminal Appeal No.1771 of 2010)

                          MARCH 31, 2015

          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
c
           Code of Criminal Procedure, 1973- s. 482- Power
  under, exercise of - Criminal proceedings initiated against
  respondent relating to offence punishable u/s. 138 NI Act-
  Petition uls. 482 by the respondent seeking quashing of the
D proceedings -Allowed by the High Court holding that the
  material before it was sufficient to cause reasonable suspicion
  in the case of the complainant- On appeal, held: High Court
  committed grave error of law in examining the a/legations
  and counter a/legations which are highly disputed and factual
E in nature in a proceedings uls. 482 - Such type of disputed
  factual defences could have been appreciated only by the
  trial court, after the parties led their evidence- Thus, the order
  passed by the High Court set aside - Negotiable Instruments
F Act, 1881-s. 138.

       Padal Venkata Rama Reddy alias Ramu v. Kowuri
       Satyanarayana Reddy and others 2011 (9) SCR 623:
       (2011) 12 sec 437 - referred to.

G                      Case Law Reference

    2011 (9) SCR 623             Referred to.          Para 6

        CRIMINAL APPELLATE JURISDICTION : Criminal
H Appeal No. 1771 of2010.
                          182
        S. KRISHNAMOORTHY v. CHELLAMMAL                      183


       From the Judgment and Order dated 95.08.2009 of        A
the High Court of Judicature at Madras in Crl O.P No. 7989
of2009.

      Se nth ii Jagadeesan for the Appellant.
                                                              B
       P. N. Ramalingam for the Respondent.

      The Judgment of the Court was delivered by

        PRAFULLA C. PANT. J. This appeal is directed
against order dated 5.8.2009, passed by the High Court of c
Judicature at Madras, in Criminal O.P. No. 7989 of 2009
whereby said petition was allowed, and criminal proceedings
initiated against respondent Chellammal relating to offence
punishable under Section 138 of Negotiable Instruments Act,
1881 (for short "the Act") are quashed by the High Court, D
exercising the powers under Section 482 of the Code of
Criminal Procedure, 1973 (for short "the Code").

      2. Heard learned counsel for the appellant. None
appeared on behalf of the respondent, though served.          E

        3. Brief facts of the case are that respondent
Chellammal borrowed a sum of Rs.2,20,000/-from appellant
S. Krishnamoorthy on 1.3.2007, and issued a post-dated
(8.3.2007) cheque towards repayment of the loan. However, F
when the cheque was presented before the Bankers on
8.3.2007, the same was returned unpaid on the ground of
insufficiency offunds. Consequently, a notice dated 17.3.2007
was sent by the appellant to the respondent demanding
payment of the loan. Said notice was received by the G
respondent on 22.3.2007. But, instead of making the payment,
she sent reply dated 5.4.2007 falsely alleging that her father
and son-in-law had borrowed loan of Rs.2,00,000/-from the
appellant, and the respondent stood only surety to said
transaction. Consequently, criminal complaint (C.C. No. 120 H
184        SUPREME COURT REPORTS                  [2015] 4 S.C.R.



A     of 2007) was filed by the appellant before the Judicial
      Magistrate, Dharapuram, for prosecution of respondent
      Chellammal in respect of offence punishable under Section
      138 of the Act.

B         4. The respondent (accused) challenged the
  proceedings of criminal complaint case by moving a Criminal
  Original Petition under Section 482 of the Code before the
  High Court. In said petition the accused pleaded that her son-
  in-law A. Raj and Ayyavu (father of A. Raj) had actually borrowed
C a sum of Rs.2,00,000/- on 19.4.2005. The cheques in question
  were only taken as security. Actually, loan was taken by A. Raj
  and Ayyavu by mortgaging their house in favour of one
  Balakrishnan, brother of the present appellant. It is alleged by
  the present respondent (accused) in the petition that
D Balakrishnan, instead of getting the mortgage deed executed,
  obtained an agreement of sale from aforesaid two persons
  with false and incorrect recitals, that a sum of Rs.2,00,000/-
  was paid as advance and part of consideration, and balance
E of Rs.25,000/- shall be paid within 35 months. Cheques bearing
  Nos. 857491, 857492 and 857493 of Canara Bank,
  Dharapuram Branch, were got filled up in the name of the
  complainant (appellant), which were misused by him.

F         5. The above defence of the respondent (accused)
  before the High Court, in the petition filed under Section 482
  of the Code, is nothing but absolutely factual in nature, which
  is neither admitted by the complainant, nor apparent on the
  face of the record. Such type of disputed factual defences could
G have been appreciated only by the trial court, after the parties
  led their evidence. In our opinion, the High Court committed
  grave error of law in examining the allegations and counter
  allegations which are disputed and factual in nature in a
  proceeding under Section 482 of the Code.
H
             S. KRISHNAMOORTHY v. CHELLAMMAL                           185
                    [PRAFULLA C. PANT, J.]

       6. In Pada/ Venkata Rama Reddy alias Ramu v.                     A
Kovvuri Satyanarayana Reddy and others 1 , this Court,
explaining the law on the scope of Section 482 of the Code,
has observed, in paragraph 32, as under: -

   "32. ltwould not be proper for the High Court to analyse             B
   the case of the complainant in the light of all the
   probabilities in order to determine whether conviction
   would be sustainable and on ::uch premise arriving at a
   conclusion that the proceedings are to be quashed. In a
   proceeding instituted on a complaint, exercise of inherent           c
   powers to quash the proceedings is called for only in a
   case in which the complaint does not disclose any
   offence or is frivolous, vexatious or oppressive. There is
   no need to analyse each and every aspect meticulously
                                                                        D
   before the trial to find out whether the case would end in
   conviction or acquittal."

         7. In view of the above position of law, we have no option
but to set aside the order passed by the High Court as it has
entered into highly disputed questions of fact and concluded            E
that the material before it was sufficient to cause reasonable
suspicion in the case of the complainant. That is not the ground
on which powers under Section 482 of the Code can be
exercised by the High Court.                                            F

         8. Therefore, the appeal is allowed. The impugned
order dated 5.8.2009 passed by the High Court of Judicature
at Madras in Criminal O.P. No. 7989 of 2009 is hereby set
aside. The Criminal complaint (CC No. 120 of 2007) pending             G
before the Judicial Magistrate, Oharapuram, shall stand
revived. The trial court shall proceed in accordance with law.
Nidhi Jani                                           Appeal allowed.


1 c2011) 12 sec 437                                                     H