IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.MC.No. 927 of 2011() ------------------------ CC.1156/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONER/SOLE ACCUSED ------------------------------------------ DR.GEETHU MOHAN, 26 YEARS, D/O.JAYALAKSHMI, SMITHA NIVAS, SARAYU NAGAR, ASRAMOM.P.O., KOLLAM. BY ADV. SRI.T.R.ASWAS RESPONDENT/COMPLAINANT -------------------------------------------- 1. SUDEER.S., S/O.SHAFFI, KILIYAN VILAKOM, VAKKOM.P.O., THIRUVANANTHAPURAM DISTRICT. 695 308. 2. SIBI SUKUMARAN, SURABHI, ULIYAKOVIL, ASRAMOM, KOLLAM. 691 002. 3. SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, REP.BY PROSECUTOR, HIGH COURT OF KERALA. 682 031. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.927 of 2011 -------------------------------------- Dated this the 24th day of March, 2011. ORDER This petition is filed by accused in C.C.No.1156 of 2010 of the court of learned Judicial First Class Magistrate, Varkala for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). That case arose on a complaint preferred by respondent No.1 where he alleged that petitioner has drawn the impugned cheque on the account maintained by her with the Indian Bank and issued the same for discharge of a legally recoverable debt/liability. According to the petitioner, she has no such account as stated in the complaint and instead, account stands in the name of respondent No.2 who is related to her. Respondent No.2 is said to have issued Annexure-D, notice to the petitioner on 19.04.2008 stating that 40 cheques including the one involved in C.C.No.1156 of 2010 drawn in the account of respondent No.2 is now in the custody of petitioner and requiring petitioner to return the same. To that notice petitioner has sent Annexure-E, reply. Learned counsel pointed out that between petitioner, her mother and respondent No.2 there are so many criminal cases pending including one for forgery of an account with the Federal Bank whereby an account of respondent No.2 was converted into a joint account of respondent No.2 and the mother of petitioner for which respondent No.2 and the officials of the bank are facing trial. It is also submitted by learned counsel Crl.MC No.927/2011 2 that in the meantime, respondent No.2 even forged an agreement as if it is executed between respondent No.2 and petitioner as per which respondent No.2 was to marry petitioner. That also is the subject matter of a criminal prosecution. It is the case of the petitioner that the account on which the impugned cheque is drawn is not maintained her. Further contention is that signature in the impugned cheque is forged by respondent No.2 and, the case is caused to be filed through respondent No.1. It is therefore prayed that the complaint and subsequent proceeding against petitioner may be quashed. 2. Respondent No.1 has proceeded on the basis that the cheque is drawn by the petitioner on the account maintained by petitioner. Whether the account is maintained by petitioner and she issued the cheque or not are disputed facts which the trial court has to decide. I am afraid in such a situation this Court cannot enter a finding on the disputed question of fact and quash the proceeding invoking power under Section 482 of the Code of Criminal Procedure (for short, “the Code”). 3. Learned counsel requested that petitioner may be given permanent exemption from appearing in the trial court. That is a matter which the trial court has to consider in view of decision of the Supreme Court in TGN Kumar v. State of Kerala and others (2011 (1) KHC 142) . However if any application for permanent exemption is preferred, certainly learned Magistrate has to consider the same having regard to the fact that the offence alleged is one under Section 138 of the Act and no dispute regarding identify of petitioner Crl.MC No.927/2011 3 is involved. Learned Magistrate shall also take into account the decision of the Supreme Court in Basavaraj R. Patil and others v. State of Karnataka and others (2000 (8) SCC 740 – at page 743) as to the guidelines prescribed in case of examination of the petitioner under Section 313 of the Code is to be recorded in her absence and pass appropriate order on the application for permanent exemption. Petition is disposed of with the above observation. THOMAS P.JOSEPH, Judge. cks