IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.MC.No. 3741 of 2009() ------------------------- CC.1210/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): ACCUSED: -------------------------------------- JOE WINSTON, 3/43, HILL VIEW, TOWN RAILWAY STATION ROAD, NAGARCOVIL, TAMIL NADU-6290019. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): COMPLAINANT & STATE: -------------------------------------------------------------- 1. P.ANIL DEV, BHAGYASREE, PADANORTH, KARUNAGAPPALLY P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: mns M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3741 OF 2009 ------------------------------------------ Dated 20th November 2009 O R D E R Petitioner is the accused and first respondent, the complainant in C.C.1210/2008 taken cognizance for the offence under Section 138 of Negotiable Instruments on Annexure-A complaint filed by first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings or in the alternative to direct the Judicial First Class Magistrate to adjourn the proceedings till the disposal of C.C.553/2009 taken cognizance by the learned Magistrate on Annexure-C complaint filed by the petitioner. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel appearing for the petitioner is that in Annexure-C complaint, petitioner has alleged that cheques of the petitioner were stolen by first respondent and first respondent had earlier filed Annexure-B complaint Crmc 3741/09 2 against wife of the petitioner which was taken cognizance by the learned Magistrate under Section 138 of Negotiable Instruments Act and under Annexure- C complaint petitioner alleged that first respondent has stolen the cheque leaves and in such circumstances Annexure-A complaint is either to be quashed or a direction is to be issued to adjourn the trial till the disposal of Annexure-C complaint. 4. Annexure-A complaint discloses all the necessary ingredients to attract an offence under Section 138 of Negotiable Instruments Act. At this stage, in a petition filed under Section 482 of Code of Criminal Procedure, this court can only assume those contentions are correct and decide whether the cognizance taken on that complaint is legal or not. When the ingredients of the offence alleged in the complaint makes out an offence the complaint cannot be quashed as sought for. Argument of the learned counsel is that Annexure-B complaint was filed earlier by first respondent against wife of the petitioner and Annexure-C complaint was later filed by the petitioner alleging that cheques were stolen by the first respondent and the question whether the Crmc 3741/09 3 dishonoured cheque involved in Annexure-A complaint is one of the cheques so stolen is a matter to be decided only after decision in Annexure-C complaint and therefore, it is to be tried. When Annexure-C complaint does not show that petitioner has alleged that any of the cheque leaves relating to the account maintained in Indian Bank was stolen by the first respondent, it cannot be assumed that the dishonoured cheque in Annexure-A complaint is the cheque allegedly stolen. In such circumstances, I find no reason to direct the learned Magistrate to postpone the trial as sought for. Question whether the dishonoured cheque in Annexure-A complaint was issued by the petitioner, towards discharge of an existing debt or it is a stolen cheque as canvassed by the petitioner is a matter to be decided by the Magistrate on evidence. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. Crmc 3741/09 4