IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 1266 of 2006(C) -------------------------- CC.1083/2004 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... PETITIONER(S): PETITIONER/ACCUSED --------------------------------- KANDATHIL SUBHASH, AGED 40 YEARS, S/O.VELAYUDHAN, VAYANADU PADAM PARAMBU, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. G.ASHOK, AGED 44 YEARS,S/O.GOPALAKRISHNA NADAR, MANAGING PARTNER, "VAIRA, BROTHERS", 1/537, EXHIBITION ROAD, WEST HILL, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MATHEW VADAKKEYIL ADV.SRI.JOSE KURIAKOSE (VILANGATTIL) FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.APPL. NO.2084/2006 IN CRL.M.C NO.1266/2006 DISMISSED sd/- 03.06.2009. (C.T.RAVIKUMAR, JUDGE) /True copy/ P.A TO JUDGE. C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M..C. NO. 1266 OF 2006 -------------------------------------------- Dated this the 3rd day of June, 2009 ORDER 1. The petitioner is the accused in S.T.No.1083/04 on the files of the Judicial First Class Magistrate Court-IV, Kozhikode alleging commission of offences under S.138 and 142 of the Negotiable Instruments Act. Admittedly, the 1st respondent filed Annexure-III complaint in the said case upon dishonouring of the cheque bearing No.02752 drawn on Calicut City Service Co-operative Bank Limited, allegedly issued by the accused and on his failure to pay the amount covered by under that despite the expiry of the statutory permitted period after the receipt of statutory notice. 2. The petitioner seeks to quash proceedings against him in S.T No.1083/04 on the ground that as per Annexure -II judgment, it was found that there is no legally enforceable debt or liability to be discharged by the petitioner towards the first respondent and consequently the complainant/the 1st respondent was directed to give back to her the cheque in question viz., cheque No.02752. Annexure-II is the judgment of the Crl.M.CNo.1266 of 2006 2 Munsiff Court-I, Kozhikode in O.S.No.198 of 2004 filed by the petitioner herein and one K.Krishnan and the first respondent herein was the first defendant therein. The counsel for the 1st respondent strongly resisted this contention and invited my attention to paragraph 12 of Annexure-A2. Admittedly the cheque involved in this is case bearing No.02752. According to him in respect of that cheque, the civil court had made observation in Annexure-A2 judgment. It was observed in Annexure- 2 judgment as follows:- “So also Section 41(b) bars granting of injunction if equally efficacious relief can be obtained by any other mode of proceedings . With respect to cheque No.02752 the plaintiffs have equally efficacious remedy available before the Magistrate Court before which the proceedings under Section 138 of the Negotiable Instruments Act is instituted”. The fact that it does not restrain the 1st respondent/ defacto complainant from making use of the cheque in question viz., No.02752 is also very much evident from Annexure-II judgment. That apart, it also makes it clear there was no direction therein to the first respondent/first defendant to give back cheque No.02752 to the petitioner/first plaintiff. 3. Suffice it to say that no case has been made out by the petitioner warranting interference of this court with the proceedings against Crl.M.CNo.1266 of 2006 3 him in S.TNo.1083 of 2004 on the file of the Judicial First Class Magistrate's Court-IV, Kozhikode and to bring about its abrupt termination. 4. In the result the Crl.M.C is dismissed. However, I make it clear that the dismissal of the Crl.M.C will not preclude the petitioner from raisinng any possible contentions based on Annexure-II judgment. (C.T. RAVIKUMAR, JUDGE) spc C.T. RAVIKUMAR, J. CRL. M.C. NO. O R D E R 3rd June, 2009