IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 Crl.MC.No. 4351 of 2005 ------------------------------ (ST.11155/2003 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM) .................... PETITIONER: PETITIONER/ACCUSED --------------------------------------------- K.ABOOBACKER, S/O.MUHAMMED, KOTTANAMTHODI HOUSE, PARUTHIKODE, P.O.PALLIKKAL NAZAR, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: ------------------- 1. C.SYED ALI, S/O.ABDULRAHIMAN, CHALIYAM HOUSE, NEAR KAVITHA THEATRE, P.O.KONDOTTI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLICC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.BABU S. NAIR FOR R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No.4351 of 2005 --------------------------------------------- Dated this the 29th day of May, 2008 O R D E R In this Crl.M.C., the prayer of the petitioner is to quash Annexure-D complaint and S.T.No.11155 of 2003 pending before the Judicial First Class Magistrate Court, Malappuram. S.T.No.11155 of 2003 is a case instituted upon Annexure-D complaint for the offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. 2. I have heard learned counsel for the petitioner as well as the first respondent. According to the petitioner, he is engaged in various businesses and he could not look after the whole work spread through out the State of Karnataka and hence, he sought the service of his cousin brother who is the first respondent herein. According to the petitioner, due to the hectic work schedule, the petitioner is normally away either from Bangalore or at Duggavati and the petitioner used to keep the blank cheque signed in the unit at Naziya Structural Crl.M.C.No.4351 of 2005 :-2-: Works, N.S.Palya, Bannerghatta Road, Bangalore. According to the petitioner, most of the cheques signed in respect of the Bangalore unit as well as the work spot at Davengare were kept in the aforesaid office so as to facilitate the first respondent to transact even in the absence of the petitioner. By producing Annexure-A, the extract of Statement of Accounts of the petitioner from 1.3.2000 to 21.8.2003 at Bapuji Co-operative Bank Ltd. , the petitioner submits that almost all the cheques were encashed by the first respondent. It is also the case of the petitioner that some of the cheques kept in the house at Bannergatta Road, which are attached to the factory premises were lost and also some cheques kept at Kondotty were lost. It is the case of the petitioner that he was under the impression that all the cheques signed were utilised for business transaction. But, according to the petitioner, to his utter surprise, some of the cheques which were missing from the Office were used by the first respondent and some cheques were encashed by him. Therefore, according to the petitioner, Crl.M.C.No.4351 of 2005 :-3-: he has filed a suit as O.S.No.16343 of 2003 before the Court of City Civil Judge, Bangalore praying for a direction to the first respondent to return the seven cheques referred to in the schedule therein. By producing Annexure-C, the petitioner submits that he has already requested the Manager, Bapuji Co-operative Bank Limited to stop the payment of the cheques which were stolen by the first respondent. It is also the case of the petitioner that the first respondent presented one of the cheques signed by the petitioner after writing an amount of Rs.1,50,000/- on the cheque before the Vijaya Bank, Kondotty Branch and that cheque was dishonoured for insufficiency of funds. Later, he filed a private complaint, a copy of which is produced along with this Crl.M.C. as Annexure-D on the basis of which the court took cognisance and instituted S.T.No.11155 of 2003. It is also the case of the petitioner that after stealing the cheques by the first respondent, one of the cheque leaves was given to one Sri.K.Subramani, on the basis of which the said Subramaniam made a complaint Crl.M.C.No.4351 of 2005 :-4-: as C.C.No.426/2004 before the Judicial First Class Magistrate Court-II, Pollachi against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and a copy of the complaint is produced as Annexure-E. So, on the basis of the above facts, it is submitted that the case instituted upon Annexure-D complaint is actually false and unsustainable and the petitioner has not committed any offence as alleged therein. 3. Learned counsel appearing for the petitioner submits that the complainant is only a worker and he is not expected to have such dealing, involving huge amount. It is also submitted by counsel for the petitioner that from the facts revealed from the records, it can be seen that Annexure-D complaint is a false one. It is also pointed out by the petitioner that Annexure-E is a complaint filed by one K.Subramaniam before the Judicial First Class Magistrate Court-II, Pollachi against the petitioner and the cheque used therein is the same cheque covered by Annexure-D complaint. So, Crl.M.C.No.4351 of 2005 :-5-: according to the counsel, the above fact itself is sufficient to say that the present complaint is a false one. 4. Per contra, the learned counsel appearing for the first respondent submits that going by Annexure-D complaint, sufficient averments are there to constitute an offence under Section 138 of the N.I.Act. It is also pointed out by the counsel that all the factual averments contained in the Crl.M.C. as well as the points urged by the counsel are to be raised before the court during the time of trial and it is for the trial court to examine the correctness of the same based upon proof. Learned counsel pointed out that the cheque numbers shown in Annexures-D and E are not one and the same, but bearing different numbers. It is also brought to my notice by the counsel for the respondents that the cheque in question is not covered by the schedule in Annexure-B plaint. Counsel appearing for the petitioner invited my attention to Annexure-A extract of the account and submits that the first respondent had Crl.M.C.No.4351 of 2005 :-6-: encashed the cheque and there is an endorsement showing the cheque number as 105929. But the counsel for the respondents pointed out that except the above endorsement, all others are computerised one. With respect to the above cheque number alone, it was endorsed by writing and therefore, all these matters are liable to be testified at the time of trial. 5. I have gone through the materials available on record and especially, Annexure-D complaint. Going by Annexure-D complaint, I am of the view that there is no ground to interfere with Annexure-D complaint. The other materials produced by the petitioner and also the points urged by counsel for the petitioner are to be examined by the trial court and the correctness of the materials and the endorsement therein etc. are to be evaluated on the basis of the evidence to be adduced during trial. Hence, according to me, no case is made out to interfere with Annexure-D complaint and S.T.No.11155 of 2003 instituted thereon. Crl.M.C.No.4351 of 2005 :-7-: 6. In the result, the Crl.M.C. is devoid of merit and is liable to be dismissed. Accordingly, this Crl.M.C. is dismissed. V.K.Mohanan, Judge MBS/ Crl.M.C.No.4351 of 2005 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -2-2008 Crl.M.C.No.4351 of 2005 :-9-: