IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 17TH DAY OF SEPTEMBER 2009/26TH ASHADA 1931 Crl.MC.No. 2622 of 2007 ( ) --------------------------- LP.141/2006 of C.J.M.,KOLLAM PETITIONER(S)/ACCUSED: --------------------- MUHAMMED SHAFI, RAHILA MANZIL, NEAR S.B.T. ARAFFA NAGAR- 116 ERAVIPURAM, KOLLAM. BY ADVS.SRI.SAJJU.S SRI. K.SHAJ SRI.B.BALRAJ COMPLAINANT(S)/COMPLAINANT/STATE: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. AZHAKESAN, S/O.GOVINDAN, PROPRIETOR, M/S A.SUDERAN RICE MERCHANT & COMMISSION AGENTS, LEKSHMY BUILDING, MAINR ROAD KOLLAM, REP.BY HIS P/A HOLDER, MOHANAN S/O PRABHAKARAN, PRIYA NIVAS, PALATHARA CHERRY VADAKKE BY ADV. PUBLIC PROSECUTOR SMT. REKHA BY ADV. SRI.P.B.SURESH KUMAR FOR R2. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C.No. 2622 of 2007 ------------------------------------------------------------- Dated this the 17th day of September, 2009. ORDER Petition for quashing the complaint filed against petitioner alleging offence under Section 138 of N.I. Act before the Court of Chief Judicial Magistrate. 2. Second respondent filed a complaint alleging that petitioner herein approached the complainant in his shop and purchased 1000 Kgs. of B.T. Raw rice worth Rs.19,218.50 on credit as per bill no.6111 dated 5.2.2002 and in discharge of this liability, he issued two cheques and on presentation, the cheques were returned unpaid due to insufficiency of fund in the account of accused to honour the cheque. The said dishonour was intimated to the complainant by a notice and accused received the notice but failed to make payment and thereby committed offence under Section 138 of N.I. Act. 3. Heard. Learned counsel for petitioner submitted that there is no averment in the complaint that the cheque is drawn on [Crl.M.C. No.2622/07] 2 the account maintained by petitioner in a bank and in the absence of such an averment in the complaint, offence under Section 138 of N.I. Act will not lie. It is also submitted that the cheques were issued from an account maintained by his brother Mohammed Nazeer Hussain. Annexure II is the copy of pass book, which shows that his brother was maintaining account no.9316 in Dhanalakshmi Bank, Kollam. Therefore, even if the allegations in the complaint are accepted in full, the offence under Section 138 will not be attracted and hence, the complaint may be quashed, it is submitted. 4. Learned counsel for petitioner also submitted that petitioner has not committed any offence and he has not even drawn the cheque and it was his own brother who drew the cheque from his own account. But, the allegations in the registered notice would show that the cheque was issued by petitioner himself from the account maintained by petitioner. It is also submitted that petitioner is working abroad and he came to know about the institution of the complaint very much later. 5. Learned counsel for complainant argued that notice was issued to petitioner and it was received by him but he did not send any reply to the notice. If the petitioner has a genuine [Crl.M.C. No.2622/07] 3 case, he could have brought the actual facts to the notice of the complainant so that he could have proceeded against petitioner under Section 420 IPC, since petitioner cheated the complainant, by issuing a cheque belonging to another, it is submitted. 6. On hearing both sides and on perusing the records, I find that though in the complaint in paragraph 1 it is not mentioned that cheque was drawn on an account maintained by petitioner, in the second paragraph, it is stated that the cheques were returned unpaid because of insufficiency of funds in the account of the accused to honour the cheques. As stated by learned counsel for respondent that it is not disputed that in the notice a reference was made to “your cheques” indicating that those belonged to petitioner. Therefore, it cannot be said that the complaint is totally bereft of the required averments which will constitute offence under Section 138 of N.I. Act. 7. It is also relevant to note that the complaint was filed as early as in 2002 and the complainant was aged 74 years in 2002 and he would be having 79 years now. The case was pending from 2002 onwards and the petitioner has filed this petition only after 5 years. All these years, the complainant was prosecuting the case and he would have faced lot of difficulties in doing so. [Crl.M.C. No.2622/07] 4 As rightly pointed out by learned counsel for respondent the petitioner ought to have at least informed the complainant by a reply notice that the cheques were issued from an account not belonging to petitioner (if that was the true fact) so that he could have proceeded against petitioner for offence under Section 420 IPC. 8. But, instead, petitioner approached the court after 5 years of the proceedings and he did not even appear before trial court. The proceedings were initiated against petitioner and the case was numbered as LP No.141/06. The case is transferred to the register of Long Pending cases because of the non- appearance of the accused. Taking all these facts into consideration, I find that there is absolutely no reason why the complaint should be quashed. The interest of justice does not warrant an interference. Petition is dismissed. Sd/- K. HEMA, JUDGE. krs.