IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 Crl.MC.No. 1683 of 2011() ------------------------------- ST.4135/2010 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM OS.547/2010 of SUBORDINATE COURT, KOTTAYAM .................... PETITIONERS/ACCUSED ----------------------------- 1. M/S.EVA RUBBERS,GOOD SHEPERED ROAD, KOTTAYAM-1,REPRESENTED BY ITS MANAGING PARTNER T.V.JOYKUTTY. 2. T.V.JOYKUTTY,AGED 48,MANAGING PARTNER OF M/S.EVA RUBBERS,GOOD SHEPERED ROAD, KOTTAYAM -1. 3. BINCY JOY, AGED 41,W/O.T.V.JOYKUTTY PARTNER,M/S.EVA RUBBERS,GOOD SHEPERED ROAD, KOTTAYAM -1. 4. SUNNY MATHEW, AGED 46, PARTNER, M/S.EVA RUBBERS,GOOD SHEPERED ROAD, KOTTAYAM-1. BY ADV. SRI.NOBLE MATHEW RESPONDENT(S):COMPLAINANT & STATE ------------------------------------------------ 1. T.P.SASEENDRAN,AGED 60, PROPRIETOR OF M/S.DIVYIA ENTERPRISES, VELLOOR P.O, PAMPADY,KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1683 of 2011 ==================================== Dated this the 09th day of June, 2011 O R D E R Petitioners are accused 1 to 4 in S.T. No.4135 of 2010 of the court of learned Judicial First Class Magistrate-III, Kottayam for offence punishable under Section 138 of the Negotiable Instruments Act. Petitioners request to quash proceedings against them on two grounds; that the cheque in question is apparently manipulated and secondly, complaint against petitioners 3 and 4 will not lie as they are only silent partners of the first petitioner- firm and are not in any way connected with the day to day administration of the Firm. I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. So far as the contention that there is material alteration in the cheque is concerned in my view that is a matter which is to be raised before and decided by the trial court. Learned counsel points out that regarding the same matter, a civil suit is pending and petitioners have already taken up a defence in that line in that suit. If such a contention is taken by the petitioners in the civil matter necessarily they are entitled to CRL.M.C. No.1683 of 2011 -: 2 :- pursue it. That such a contention is taken up is not sufficient to quash proceeding under Sec.138 of the Act. Second contention also in my view is equally unsustainable at this stage. True, as per Annexure-A1 partition deed petitioners 3 and 4 are only partners of the firm. But to rope them also in the alleged offence the first respondent has pleaded in Annexure-A3, complaint that petitioners 2 to 4 (second petitioner is the Managing Partner) are actively engaged in the day to day administration of the first petitioner-firm. Whether that allegation is correct or not is a matter to be decided by the trial court. I am not inclined to think that this Court should interfere and quash proceedings. 3. Learned counsel requested that petitioners 2 to 4 may be granted permanent exemption from personal appearance. That is a matter which the trial court has to decide having regard to the nature of the offence and that there is no possibility of any dispute regarding identity of petitioners 2 to 4. I make it clear that it is open to petitioners 2 to 4 to make a request for permanent exemption under Section 205 of the Code of Criminal Procedure and if any such request is made learned Magistrate shall decide that application as early as possible having regard to the nature of the offence alleged and the observations made above. Criminal Miscellaneous Case is dismissed without prejudice CRL.M.C. No.1683 of 2011 -: 3 :- to the right of petitioners to seek permanent exemption as above stated and take appropriate defence before the learned Magistrate. THOMAS P. JOSEPH, JUDGE. Vsv The name of court “Judicial First Class Magistrate-III, Kottayam” occurring in line 2 of paragraph 1 of the order dated 09/06/2011 in Crl.M.C. 1693/2011 is corrected and substituted as “Chief Judicial Magistrate, Kottayam, vide order dated 25/07/2011 in Crl.MC 1683/2011. Sd/- Registrar (Judicial)