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TMI Blog2021 (11) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... or invoking the powers under the said provision - No documents are also seen produced to substantiate, either availing of the loan in the year 2006 or repayment thereof. The aforesaid aspects coupled with long delay occurred in the initiation of the proceedings, which is much after the petitioners have initiated proceedings under Section 138 of the Negotiable Instruments Act, shatters the case advanced by the prosecution. From the aforesaid materials, the irresistible conclusion possible is that, the entire proceedings of submission of the complaint, filing of Annexure-F charge sheet and all further proceedings are clear abuse of process of law. The chances for successful prosecution based on Annexure-F charge sheet is very bleak particularly because of the fact that it lacks any specific material particulars in support of the allegations and the offences alleged. The petitioners are entitled to succeed - Petition allowed. - Crl. Mc No. 6733 of 2016 - - - Dated:- 16-11-2021 - Ziyad Rahman A.A., J. For the Appellant : Rajesh Sivaramankutty, Adv. For the Respondents : Aravind V. Mathew, Public Prosecutor and T.C. Suresh Menon, Adv. ORDER The petitioners are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs was paid on February, 2013 on behalf of her husband and the balance amount was also paid by her husband and the loan was discharged. On 27.9.2014, they have received a summons from the Judicial First Class Magistrate Court, Ottappalam in connection with the proceedings initiated by the 2nd petitioner under the provisions of Section 138 of the Negotiable Instruments Act. Thereafter, on 14.2.2015, a complaint was submitted by the 2nd respondent before the police and based on the same, Annexure-B First Information Report was registered and investigation started. 3. Even though, the petitioners submitted Crl.M.C. No. 5396 challenging the F.I.R., this Court permitted the investigation to go on and the petitioners were directed to surrender before the learned Magistrate and seek bail. After completing the investigation as aforesaid, the Police submitted Annexure-F charge sheet for the offences under Sections 420,506(i) r/w. Section 34 of the Indian Penal Code and also under Sections 13 and 17 of the Kerala Money Lenders Act. 4. The petitioners contended that Annexure-F final report is an abuse of process of law and the same was submitted on the basis of a complaint raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With regard to the allegation of Section 13 of the Act which deals with the penalty for molestation of the debtor, it was contended that, in view of the vagueness in the allegations and also on account of the delay, no prima facie case is made out. 8. Per contra, the learned counsel for the 2nd respondent would contend that the averments in Annexure-A statement of the 2nd respondent attracts the offences alleged against the petitioners. Merely because of the reason that a proceeding under Section 138 of the Negotiable Instruments Act has been initiated against the 2nd respondent, the present prosecution cannot be treated as mala fide. The learned counsel also relied upon the judgments rendered by the Hon'ble Supreme Court in Sri Suresh Kumar Goyal and Others v. State of Uttar Pradesh and Another [ (2019)14 SCC 318] and Moosa v. Sub Inspector of Police [2006 (1) KLT 552]. On the basis of the said judgments, it is contended that, it is not proper to invoke the powers of this Court under Section 482 of Cr.PC. at this juncture as the same would cause serious prejudice to the prosecution and they will be prevented from establishing the offences alleged against the petitioners b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulia Kali v. State of Tamil Nadu, 1972 KHC 592 : AIR 1973 SC 501 : 1972 (3) SCC 393 : 1972 SCC (Cri) 543 : 1972 (3) SCR 622 : 1972 CriLJ 1296 : 1974 (1) MLJ 32, State of Andhra Pradesh v. M. Madhusudhan Rao, 2008 KHC 6891 : 2008 (15) SCC 582 : 2008 (14) SCALE 118 etc., that delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on its veracity. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc. 11. Thus, it is well settled position that the delay in lodging the FIR, often results in embellishment and exaggeration. It exposes the danger of introduction of a coloured version, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. The issue being examined in the instant case is the jurisdiction of the High Court under S. 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under S. 482 CrPC, at the stages referred to hereinabove, would have far - reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under S. 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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