IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.MC.No. 1286 of 2009() ------------------------- ST.437/2007 of *[CJM, PATHANAMTHITTA] *CORRECTED AS JUDICIAL FIRST CLASS MAGISTRATE-II, PATHANAMTHITTA AS PER ORDER DATED 24/4/09 IN CRL.M.A.2221/09 .................... PETITIONER(S): ACCUSED: ----------------------- RATHEESH BABU.C.K., CHANKOOR HOUSE, KODUMON EAST P.O., ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE KERALA STATE FINANCIAL ENTERPRISES LTD., REPRESENTED BY ITS PATHANAMTHITTA BRANCH MANAGER, P.SOMARAJAN. ADV. SRI.M.SASINDRAN, SC, K.S.F.E., LTD. FOR R2 R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: uj. ORDER ON CRL.M.A.NO.2027/09 IN CRL.M.C.1286/09 DISMISSED 5/10/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1286 OF 2009 =========================== Dated this the 5th day of October,2009 ORDER The second respondent, Kerala State Financial Enterprises Ltd lodged Annexure I complaint alleging that petitioner committed an offence under section 138 of Negotiable Instruments Act when one of the five cheques issued by the petitioner, as provided in the agreement whereunder petitioner availed a loan of Rs.3,75,000/- agreeing to repay the same with interest and other incidential charges in 60 equal instalments was dishonoured, alleging that offence under section 138 was committed. It was taken cognizance by Judicial First Class Magistrate, Pathanamthitta in S.T.437/2007. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that by Annexure-2 order, Government has granted permission to the petitioner to remit the defaulted instalments within 15 days from 2.3.2009 and he has remitted the amount and therefore it is not in the interest of justice to continue the prosecution. 2. Learned counsel appearing for the petitioner Crl.M.C.1286/2009 2 and second respondent were heard. 3. Learned counsel appearing for the second respondent admitted that pursuant to Annexure 2 order, the defaulted instalments provided under Annexure 2 was paid by the petitioner. Learned counsel appearing for the petitioner submitted that as is clear from Annexure 1 complaint petitioner entrusted additional cheques to second respondent which could be presented for the default instalments as provided in the agreement and in such circumstance, there is no necessity to continue the proceedings. Learned counsel appearing for the second respondent submitted that second respondent is entitled to realise any of the defaulted instalments and is also entitled to present the cheque for encashment and if it is dishonoured an offence under section 138 as provided under section 142 of N.I. Act is attracted. 4. As it is admitted that the amount due under the dishonoured cheque, based on which the learned Magistrate has taken cognizance for the offence under section 138 of Negotiable Instruments Act, was permitted to be discharged by the petitioner under Anneuxre 2 order within fifteen days of the date of that order and the amount was paid, it is not in the interest of justice to continue the prosecution. Crl.M.C.1286/2009 3 Petition is allowed. S.T.437/2007 on the file Judicial First Class Magistrate Court-II, Pathanamthitta is quashed. The quashing of the complaint will not affect the right of the second respondent to present the other cheques for subsequent default of instalments or to proceed against the petitioner, if they are dishonoured, in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006