IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 3509 of 2009 --------------------------------------- ST.217/2009 of CHIEF JUDL.MAGISTRATE, KOLLAM .................... PETITIONER/ACCUSED: V.L. LOUIS, VYSHAKAM BUILDING, AMBIPOIKA.P.O, EAST KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENTS/COMPLAINANT AND STATE: 1. RAVEENDRAN PILLAI, S/O. NEELAKANDAN PILLAI, RESIDING AT MANGALASSERIYIL VEEDU, ASRAMAM, KOLLAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3509 of 2009 -------------------------- ORDER Petitioner is the accused in S.T.No.217/2009 on the file of Chief Judicial Magistrate's Court, Kollam, taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-A1 complaint filed by the first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 complaint and the cognizance taken contending that continuation of the proceedings is only an abuse of process of the court, as on the complaint, there is no likelihood of a successful prosecution. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that in Annexure-A2 notice sent under Section 138(b) of Negotiable Instruments Act, first respondent did CRMC 3509/09 2 not demand the respective amounts due under the two cheques and instead, demanded the total amount covered by the two cheques and it is not sufficient and hence, the proceedings is to be quashed. Learned counsel also argued that the dishonoured cheque, involved in the case, was forcibly taken from the petitioner, who is a practising Lawyer and petitioner had preferred a complaint before the police and in such circumstances, the cheque was not issued towards discharge of any legally enforceable debt and therefore, the offence is not attracted. 4. On hearing the learned counsel, I cannot agree with the submission that complaint is to be quashed on any of the grounds. Section 138(b) of Negotiable Instruments Act provides for demanding the amount covered by the dishonoured cheque. It cannot be said that by Annexure-A2, the amount covered by the two cheques was not demanded for the reason that only the total amount covered by the CRMC 3509/09 3 two cheques was demanded. The question whether dishonoured cheque was taken from the petitioner by the first respondent, who was allegedly working as a Clerk of the petitioner is a matter for evidence and based on the allegations in the petition, it cannot be quashed. Petitioner is at liberty to raise all these contentions before the learned Magistrate. Learned counsel then submitted that presence of the petitioner may be dispensed with at the time of trial and petitioner may be permitted to seek an order of discharge. 5. This Court had already observed in several decisions that when an accused is being tried for an offence under Section 138 of Negotiable Instruments Act, personal presence of the accused need not be insisted, except in cases, where identity is an issue and a petition under Section 205 of Code of Criminal procedure is to be liberally allowed. I find it not necessary to make any other observation. If the case is being tried CRMC 3509/09 4 as a warrant trial case, petitioner is entitled to seek an order of discharge by filing a petition under Section 205 of Code of Criminal Procedure and in that case, learned Magistrate not to insist for the personal presence of the petitioner. Petition is disposed. 2nd November, 2009 (M.Sasidharan Nambiar, Judge) tkv