IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.MC.No. 3081 of 2008() ------------------------- ST.242/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER: ACCUSED: -------------------- A.J.AUGUSTINE, AGED 72, ATTIPETTIL HOUSE, NEDUMKANDOM P.O. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: (1ST RESPONDENT IS THE COMPLAINANT ----------------------------------------------- 1. NISSAR.U.H., S/O.HASSAN, UKKINIVEETIL HOUSE, EDAVETTY .P.O., THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3081 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. According to the complainant he had advanced an amount to the petitioner in connection with his business and along with the share of profits, an amount of Rs.3,50,000/- was agreed to be returned by a cheque. The prosecution relates to that cheque. Cognizance has already been taken. The petitioner has not entered appearance so far. 2. According to the petitioner, the allegations are totally false and are raised vexatiously. He is entitled to get the proceedings prematurely terminated by the invocation of the jurisdiction under Section 482 Cr.P.C. 3. What is the reason? According to the petitioner the allegations are totally false. The complainant was an employee under the accused. The complainant had started absconding from 13.8.2007 taking away with him a computer and large amounts. Crl.M.C.No. 3081 of 2008 2 Crime 257 of 2007 of Nedumkandom police station was registered on such allegations. Investigation is in progress. As the said investigation was not satisfactory, the petitioner had approached this Court seeking directions under Section 482 Cr.P.C. At long last, investigation now appears to be on the right keel. 4. It is at this juncture that the complainant allegedly presented the cheque drawn on an account maintained by the petitioner. According to the petitioner he had not given any such cheque to the complainant. According to him, there was no monetary transactions between the petitioner and the complainant. A cheque leaf which had fraudulently come into the possession of the complainant is being misutilised by the complainant. The petitioner is not too sure and has not taken a specific stand as to whether the signature appearing in the cheque is his or not. The petitioner submits that he has already filed a complaint before the police in respect of the fraudulent use of the cheque subsequent to its presentation and the same is pending as Crime No. 62 of 2008 of the same police station. In these circumstances it is submitted that continuance of the prosecution under Crl.M.C.No. 3081 of 2008 3 Section 138 of the Act would be a traversity of justice and a transparent abuse of process of court. It is in these circumstances prayed that the prosecution under Section 138 of the N.I. Act may be quashed. 5. I shall carefully avoid any detailed discussion on merits about the acceptability of the rival assertions or the credibility of the data presently available. I need only mention that after having rendered my very anxious consideration to the nature of the disputes raised, I am of the opinion that it would be presumptuous on the part of this Court now to attempt to authentically resolve the disputed questions of fact which do appear to be complicated in this case. Considering the nature and quality of the materials that are presently available and also considering nature of jurisdiction under Section 482 Cr.P.C., which I am called upon to invoke and exercise, I am satisfied that this is not a fit case where such an endeavour can be undertaken at this stage. The petitioner cannot succeed in his prayer for quashing the proceedings. He must take part in the proceedings and attempt to establish the assertions of facts made by him. Crl.M.C.No. 3081 of 2008 4 6. This Crl.M.C. is accordingly dismissed. I may hasten to observe that I have not intended to express any opinion on merits about the disputed facts. I must be taken as having only said that powers under Section 482 Cr.P.C. cannot and need not be invoked at this stage. 7. The learned counsel for the petitioner submits that insistence on personal appearance of the petitioner, a 72 year old man, would work out great prejudice, hardship and loss. The petitioner can certainly approach the learned Magistrate with an application under Section 205 Cr.P.C. and such application to be filed by the petitioner must certainly be considered by the learned Magistrate on merits in accordance with law and expeditiously. I have often repeated that in a prosecution under Section 138 of the N.I. Act it is not invariably necessary that personal presence of the indictee must be insisted by the court on all dates of posting. Unless his personal presence is necessary for making the progress of the case and unless such progress cannot be achieved without the personal presence of the indictee, it is advisable, nay unnecessary for the court to insist on the personal presence of the Crl.M.C.No. 3081 of 2008 5 petitioner. The petitioner can appear through counsel and make his application under Section 205 Cr.P.C. for permanent exemption and the learned Magistrate shall pass appropriate orders on such application. (R. BASANT) Judge tm