IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.MC.No. 2860 of 2005() ------------------------- CC.156/2004 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE CC.976/2002 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... PETITIONER: 2ND ACCUSED: --------------------------- P. LAKSHMANAN PILLAI, S/O. PADMANABHAN PILLAI, `SREE KUMARAM', VAIKOM THEKKENADA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: COMPLAINANT & STATE: ----------------------------------- 1. M. UNNIKRISHNAN, S/O.KRISHNAN MOOTHAN, LIBRARY ASSISTANT, GURUVAYOORAPPAN COLLEGE, GURUVAYOORAPPAN COLLEGE QUARTERS, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN ADV. SRI.P.K.RAMKUMAR FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------------- Crl.M.C.No.2860 of 2005 ----------------------------------- Dated this the 11th day of December, 2009 ORDER The second accused in C.C.No.156 of 2004 on the file of the Chief Judicial Magistrate, Kozhikode is the petitioner. Upon a complaint filed by the first respondent, the Chief Judicial Magistrate, Kozhikode took cognizance for offence under Sections 379, 465, 467, 468, 469, 471 read with Section 34 I.P.C. against the petitioner and another (first accused) and had been proceeding as C.C.No.156 of 2004. The allegations in the complaint are that the first accused therein committed theft of five cheque leaves bearing Nos.392921 to 392925 from the bag of the first respondent while on journey from Calicut to Ernakulam and that after forging the signature of the first respondent in two of such cheques, the petitioner and the first respondent presented the cheques for collection and on dishonour for insufficiency of funds, prosecution was launched for offence under Section 138 of the Negotiable Instruments Act. 2. According to the petitioner the first respondent borrowed Rs.25,000/- from the petitioner and issued cheque bearing No.392926 and it is basing upon that cheque, he Crl.M.C.No.2860 of 2005 2 prosecuted the first respondent in C.C.No.976 of 2002 and that prosecution was not based upon any of the cheques so alleged to have been stolen by the first accused from the bag of the first respondent and in that circumstance he sought for quashing the complaint in C.C.No.156 of 2004 as against the petitioner in exercise of powers under Section 482 of the Code of Criminal Procedure. 3. Copy of the judgment in C.C.No.976 of 2002 which was produced as Annexure B would show that the prosecution under Section 138 of the Negotiable Instruments Act is not in respect of the cheques alleged to have been stolen in C.C.No.156 of 2004. It is in respect of another cheque and the petitioner succeeded therein as evidenced by Annexure B judgment. It is pertinent to note that the allegation of theft is in respect of five other cheques and the allegation of forgery is in respect of two cheques out of five. That being the materials available, it may not be just and appropriate to give reliance to Annexure B judgment in C.C.No.976 of 2002 to conclude that the allegation of theft, forgery and other offence in C.C.No.156 of 2004 are groundless so as to quash it. The very relief sought is on the Crl.M.C.No.2860 of 2005 3 basis of Annexure B judgment. The prosecution in Annexure B being based upon another the cheque, this petition is devoid of merits. It is a matter of evidence as to whether there was theft and forgery. It cannot be decided in a petition under Section 482 of the Code of Criminal Procedure. From the materials now on record, there are sufficient allegations to proceed with. The offence alleged being triable under Chapter XIX B, the petitioner is at liberty to seek a discharge under Section 245 of the Code of Criminal Procedure. I find no good reason to quash the complaint at this stage. In the result, this petition is dismissed with liberty to the petitioner to urge his contention before the trial court for discharge or acquittal as the case may be. P.S.GOPINATHAN, JUDGE skj