IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.MC.No. 4034 of 2005(D) ------------------------------------ ST.1831/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .............................. PETITIONER(S): ACCUSED ------------------------------------- VASU.P, S/.O.KORAN, PATHIRATHU HOUSE, KADAVANADU POST, PONNANI, MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------ 1. P.V.JOHN, VANCHIPALATHINKAL HOUSE, KAVUMBHAGOM POST, MANIPUZHA, THIRUVALLA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.RAJEEV FOR R1 PUBLIC PROSECUTOR SRI.B.VINOD FOR R2. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4034 of 2005 -------------------------- ORDER Petitioner is the accused and first respondent, the complainant in S.T.No.1831/2005 on the file of Chief Judicial Magistrate's Court, Kottayam. First respondent lodged Annexure-B complaint alleging that towards discharge of the liability, petitioner issued the dishonoured cheque and it was dishonoured for the reason, account closed and there was no sufficient funds in the account and in spite of the notice served demanding the amount covered by the cheque, petitioner did not pay the amount and thereby committed offence under Section 138 of Negotiable Instruments Act. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that it is only an abuse of process of the court and a cheque of the year 1980 was, fraudulently, altered to one of 2004 and first respondent did not CRMC 4034/05 2 disclose in the complaint how he got acquaintance with petitioner and what was the liability to be discharged under the cheque and the dishonoured cheque is not even a negotiable instrument, as the payee is shown Three lakhs and not the first respondent and therefore, the complaint is to be quashed. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel appearing for the petitioner submitted that the dishonoured cheque is Cheque No.281 and Cheque No.284 was presented by another complainant in another case in 2002 and got it dishonoured and a complaint was filed alleging offence under Section 138 of Negotiable Instruments Act and if Cheque No.284 was presented for encashment in 2002, Cheque No.281 could not have been issued in 2004 as claimed and therefore, it is sure that the dishonoured cheque was not issued as claimed. Learned counsel also argued that as first CRMC 4034/05 3 respondent is not shown as the payee under the cheque, it is not a negotiable instrument and by changing the year from 1980 to 2004, there is material alteration in the cheque and in such circumstances, even if the case is to be tried, there is no reasonable chance of a conviction and therefore, it is to be quashed. 4. Learned counsel appearing for the first respondent pointed out that the contentions raised are all matters for evidence, which is to be decided at the time of trial and not in this petition and in such circumstances, there is no reason to quash the complaint. Learned counsel appearing for the petitioner pointed out that though petitioner is a resident of Ponnani of Malappuram District, he will be compelled to defend the case at Kottayam and in such circumstances, this Court has to consider in this petition whether the very complaint is maintainable or not. CRMC 4034/05 4 5. Annexure-B complaint shows that complaint was submitted before the Magistrate's Court at Kottayam for the reason that cheque was presented for encashment through Federal Bank at Kottayam and notice was also sent from Kottayam. Considering the fact that petitioner is a resident of Malappuram District and the cheque was issued from an account maintained at Ponnai and considering the contentions of the petitioner, it is, in the interest of justice, to transfer the case to Judicial First Class Magistrate's Court, Ponnai, so that petitioner can raise all the contentions before that court, as the contentions raised by him in this petition can be decided only on evidence. If so, the complaint cannot be quashed at this stage. Petition is disposed of transferring S.T.No. 1831/2005 on the file of Chief Judicial Magistrate's Court, Kottayam to Judicial First Class Magistrate's Court, Ponnani, in the interest CRMC 4034/05 5 of justice, for trial and disposal. Chief Judicial Magistrate, Kottayam is directed to send all records to Judicial First Class Magistrate's Court, Ponnani. Petitioner is entitled to raise all the contentions before the learned Magistrate at Ponnani. 31st July, 2009 (M.Sasidharan Nambiar, Judge) tkv