IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.MC.No. 1456 of 2009() ------------------------------------- * CC.613/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT,CHALAKUDY * THE NAME OF THE LOWER COURT IS CORRECTED AS C.C.613/2009 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKKUDA, AS PER ORDER DATED 08/05/2009 IN CRL.MA.2605/2009 IN CRL. MC.1456/2009. .................... PETITIONER/ACCUSED ---------------------------------- C.B. ARUN., AGED 29 YEARS, ADVOCATE, S/O.C.G. BALACHANDRAN, CHERTHEDATH HOUSE, KIZHEKKE CHALAKUDY, CHALAKUDY P.O. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.M.REVIKRISHNAN. RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------- 1. DR.K.T. CHACKOCHAN ALIAS KANICHAI THOMAN CHACKOCHAN, AGED 57 YEARS, S/O.THOMAN, KANICHAI HOUSE, VYNTHALA, PALAYAMPARAMBU P.O., REPRESENTED BY HIS POWER HOLDER AGENT AND NEPHEW,SUNNY CHERIAN AGED 45 YEARS, BUSINESS, S/O.CHERIAN,UKKEN HOUSE, EDAKULAM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. R1 BY ADV. SRI.T.N.MANOJ. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1456 of 2009 -------------------------- ORDER Petitioner, the accused in C.C.No.613/2009 on the file of Judicial First Class Magistrate's Court, Irinjalakuda, filed this petition under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to keep the case pending till the disposal of O.S.No.97/2009 on the file of Sub Court, Irinjalakuda. First respondent is the complainant. First respondent lodged Annexure-A complaint alleging that petitioner committed an offence under Section 138 of Negotiable Instruments Act. It was taken cognizance by the learned Magistrate. 2. Case of the first respondent is that petitioner, along with Vipin Lonappan, the accused in C.C.No.612/2009, filed O.S.No.97/2009 before Sub Court, Irinjalakuda seeking specific performance of the agreement for sale against first respondent and CRMC 1456/09 2 the question whether the dishonoured cheuqe involved in the case was issued towards part payment of the agreement for sale is to be decided in O.S.No.97/2009 and in such circumstances, a direction is to be issued to the learned Magistrate to keep C.C.No.613/2009 pending till the disposal of O.S.No.97/2009. The accused in C.C.No.612/2009, the co-plaintiff in O.S.No.97/2009, filed Crl.M.C. No.1457/2009 before this Court seeking the very same relief. By order dated 13.8.2010, that petition was dismissed with the observation that it is for the Magistrate to examine how far an offence under Section 138 of Negotiable Instruments Act could be sustained, when the cheque involved is alleged to have been issued towards part payment of the sale consideration in respect of an agreement for sale and it is for the learned Magistrate to decide. In the light of the said decision, petition is dismissed granting liberty to the petitioner to CRMC 1456/09 3 raise all the contentions raised herein before the learned Magistrate. The question whether the dishonoured cheque was issued towards part payment of the sale consideration under an agreement for sale and whether it would attract an offence under Section 138 of Negotiable Instruments Act are all matters to be decided by the learned Magistrate based on the evidence to be recorded. 4th October, 2010 (M.Sasidharan Nambiar, Judge) tkv