IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 226 of 2009(E) ------------------------------------ ST.NO.271/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-IV, ERNAKULAM .................... PETITIONER/ ACCUSED: ----------------------------------- LIZZY BABU, W/O.BABU, AGED 39 YEARS, PALLATHUKOODU HOUSE, 52ND MILE,ADIMALY P.O. BY ADV. MR.S.RAJEEV. RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------- 1. ING VYSAYA BANK LTD,RETAIL BANKING DIVISION, KSHEMA BUILDING, RAVIPURAM, REP.BY THE POWER OF ATTORNEY HOLDER C.VENUGOPAL, OFFICER, CBD REGIONAL OFFICE, ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. MR.P.T.JOSE, R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 226 of 2009-E ================== Dated this the 3rd day of June, 2009. O R D E R Petitioner is the accused and 2nd respondent the complainant in S.T.No.271/2008 pending before Judicial First Class Magistrate Court-IV, Ernakulam. The Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act on Annexure 1 complaint. As per the allegation in the complaint, towards repayment of the loan of Rs.7,50,000/- obtained, petitioner issued cheque Nos.268817, 268818 and 268819 drawn on ING Vysya Bank Ltd., Kottayam and when cheques were presented they were dishonoured for want of sufficient funds and inspite of notice the amount was not paid and petitioner committed offence under Section 138 of the Negotiable Instruments Act. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure 1 complaint and the proceedings taken by the Crl.M.C.No.226/2009-E -2- Magistrate contending that there is no allegation in the complaint that the dishonoured cheques were issued in the account maintained by the petitioner. It was contended that those cheques were issued from the account maintained by the husband of the petitioner as evidenced by Annexure 2 statement of deposit of account and so no offence under Section 138 is attracted. 2. Learned Counsel appearing for petitioner and learned Counsel appearing for second respondent were heard. 3. Learned Counsel appearing for second respondent submitted that second respondent was partly examined and it is posted for cross-examination and at this stage petitioner is entitled to cross-examine the witness and to establish that no offence is made out and the petition under Section 482 of Code of Criminal Procedure is not maintainable. Learned Counsel for the petitioner rightly pointed out that an offence under Section 138 would lie only Crl.M.C.No.226/2009-E -3- if the dishonoured cheques were issued in the account maintained by the petitioner and if the complaint does not disclose that the account is maintained by the petitioner and if the materials establish that the account is not maintained by the petitioner, no offence under Section 138 of Negotiable Instruments Act will lie and if so the complaint can only be quashed. 4. To attract an offence under Section 138 of the Negotiable Instruments Act it is mandatory that the cheque should be issued by the accused in the account maintained by him. Annexure 1 complaint though contain the averment that petitioner issued the dishonoured cheques, does not show that the account was maintained by the petitioner. Annexure 2 statement of deposit of account establish that Account No.507010062789 is the account maintained by Babu P.Kuriakose and not his wife, the petitioner. Annexure 4(a) to Annexure 4(c), certified copy of dishonoured cheques, establish that all the cheques were Crl.M.C.No.226/2009-E -4- issued from Account No.507010062789. Therefore Annexure 4 copies of dishonoured cheques with Annexure 2 statement of deposit of account issued by the Bank establish that the dishonoured cheques were issued in the account maintained by Babu P.Kuriakose and not by the petitioner. Therefore this is not only a case where the complaint does not contain necessary pleadings that the dishonoured cheques were issued in the account maintained by the petitioner/accused, but materials establish that the cheques were issued not from the account maintained by petitioner. If that be so, an offence under Section 138 of Negotiable Instruments Act is not attracted. The question whether any other offence was committed or not is not to be decided in this petition. Crl.M.C. is allowed. Annexure A1 complaint and S.T.No.271/2008 taken cognizance on the complaint are quashed. M.SASIDHARAN NAMBIAR JUDGE dkr