IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 1814 of 2007(N) --------------------------------- PETITIONER : ---------------- SHANTHAMMA.T., W/O.SUKUMARAN NAIR, AGED 60 YEARS, 10/225, THADAVILAYIL VADEKKETHIL, VALLIKUNNAM P.O., ALAPPUZHA DISTRICT-690 501. BY ADV. SRI.V.SANTHARAM SRI.ANTO THOMAS SMT.SHIJA VARGHESE RESPONDENTS : ------------------- 1. SOFIAMMA THOMAS, M.I.G.426, PANAMPILLY NAGAR, ERNAKULAM, COCHIN-36. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.CHITAMBARESH - R1 SRI.T.C.SURESH MENON - R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1814 of 2007(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE COMPLAINT DTD.04.07.2005 S.T.28/06 OF JUDICIAL IST CLASS MAGISTRATE COURT-IV, KOCHI-5 EXT.P2: TRUE COPY OF THE COMPLAINT NO.2318/05 DATED 06.05.2005 FILED BY THE 1ST RESPONDENT BEFORE C.J.M., ERNAKULAM EXT.P3: TRUE COPY OF THE PROMISSORY NOTE DATED 21.04.2005 EXECUTED BY THE SON OF THE PETITIONER EXT.P4: TRUE COPY OF THE CHEQUE DATED 02.05.2005 IN S.T.28/06 EXT.P5: TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE IST RESPONDENT IN S.T.28/06 DATED 05.07.2004. -TRUE COPY- P.A. TO JUDGE pac THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No.1814 of 2007 ------------------------------ Dated this the 16th day of October, 2008 JUDGMENT Heard counsel for writ petitioner and public prosecutor representing the state. There is no representation for the first respondent. 2. Prayer in this writ petition is to quash Exhibit P1 complaint dated 4/07/2005 to the extent it concerned the writ petitioner. Learned counsel for writ petitioner submits that initiation of proceedings against the writ petitioner under Section 138 of the Negotiable Instruments Act( for short, 'he Act') is nothing but an abuse of the process of court and requested to quash the proceeding to the extent it concerned the petitioner. 3. First respondent filed Exhibit P1, complaint against writ petitioner and her son, arrayed as first accused in the complaint, under Section 190 and 200 of Code of Criminal Procedure and Section 142 of the Act. Allegations in Exhibit P1, complaint in short is that the son of revision petitioner(first accused in the complaint) issued three cheques for the discharge of debt due to the first respondent. Cheque dated 2/05/2005 for Rs.50,000/- (Photocopy is Exhibit P4) referred to in Exhibit P1 complaint is one among them. According to the first respondent, that cheque was issued by the first accused on the account maintained by him. The same was W.P(c) No.1814/ 2007 2 delivered to the first respondent by the revision petitioner and therefore complaint is filed against writ petitioner as well as her son, the first accused. Exhibit P5 is the photocopy of the sworn statement given by first respondent in the court in support of averments in Exhibit P1 Complaint. 4. Under Section 138 of the Act, the person to be proceeded against is he who issued the cheque on the account maintained by him. Going by the averments in Exhibit P1complaint, the person who issued the cheque on the account maintained by him is the first accused. Chapter XVII of the Act does not provide for prosecution of the person who is said to have handed over the cheque to the payee concerned. As such, the complaint as against the writ petitioner cannot stand. Writ petition is therefore allowed. Exhibit P1, complaint to the extent it concerned the writ petitioner for the offence under Section 138 of the Negotiable Instruments Act is quashed. THOMAS P. JOSEPH, JUDGE scm