IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 793 of 2011() ------------------------ ST.8/2010 of JUDICIAL FIRST CLASS MAGISTRATE-IV, KOTTAYAM .................... PETITIONER/ACCUSED: ---------------------- A.J.JOSEPH, ALUNKAL HOUSE, ANICKAD EAST P.O., KOTTAYAM. BY ADV. SRI.I.DINESH MENON RESPONDENTS/COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, BANK OF INDIA, KOTTAYAM BRANCH - 686 001. PUBLIC PROSECUTOR : ADV SRI K J MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.793 of 2011 --------------------------------------- Dated this 14th day of March, 2011 ORDER Petitioner is the accused in S.T.No.8 of 2010 of the Court of learned Judicial First Class Magistrate-IV, Kottayam facing trial for offence punishable under Sec.138 of the Negotiable Instruments Act. The case arose on Annexure-A1, complaint preferred by the second respondent. Petitioner seeks to quash proceeding against him on the ground that it is an abuse of the process of Court in view of the judgment of this Court in W.P(C). No.25463 of 2010. I have heard learned counsel for petitioner, second respondent and the learned Public Prosecutor. 2. When revenue recovery proceeding was initiated on the request of the second respondent petitioner approached this Court with W.P(C).No.25463 of 2010 and this Court by Annexure- IV, judgment dated September 20, 2010 permitted petitioner to discharge the liability in installments. Learned counsel for petitioner submits that the payment is to be completed as per the said order by 15.03.2011. Submission of learned counsel is that this Court has directed the second respondent to consider whether interest on penal interest claimed by the second Crl.M.C.No.793 of 2011 -: 2 :- respondent could be waived and petitioner shall be informed about that but, no such intimation has so far been given. Learned counsel for second respondent submitted that the mere fact that revenue recovery proceeding has been stayed and installment facility for payment of the amount has been given by this Court does not mean that Annexure-1, complaint and proceeding thereon are liable to be quashed. 3. Having heard arguments advanced by learned counsel, I am inclined to think that recovery of the amount, be it by revenue recovery proceeding or in any other manner is one thing while a prosecution under Sec.138 is an entirely different matter. Merely for the reason that installment facility has been given to the petitioner for payment of the amount, it cannot be said that prosecution under Sec.138 is not maintainable. Learned counsel for petitioner submits that petitioner is prepared to discharge the entire liability before 13.04.2011. The second respondent is willing to compound the offence if the liability is cleared within that time. In the circumstances I am inclined to direct that trial of S.T.No.8 of 2010 of the Court of learned Judicial First Class Magistrate-IV, Kottayam will stand in abeyance until 13.04.2011. Resultantly this petition is disposed of directing the learned Judicial First Class Magistrate-IV, Kottayam to keep in abeyance Crl.M.C.No.793 of 2011 -: 3 :- trial of S.T.No. 8 of 2010 until 13.04.2011. If in the meantime the entire liability is discharged it is open to the parties to file appropriate petition before the learned Magistrate to compound the offence. If the liability is not discharged by 13.04.2011 it is open to the learned Magistrate to proceed with the case as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/-