IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 Crl.MC.No. 3628 of 2009() ----------------------------- (ST.179/2007 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-IV AT KOCHI) ................................................. PETITIONER: ACCUSED ------------------------- SUNILKUMAR T., 'MARAYIL HOUSE', KALAMASSERY, NEAR TELEPHONE EXCHANGE, COCHIN-683 104. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M/S. CITI FINANCIAL, CITI FINANCIAL CONSUMER FINANCE INDIA LTD., H.H.Y.S.BUILDING, OPP. GANGOTHRI KALYANAMANDAPAM, RAJAJI ROAD, KOCHI-682 035, REP. BY ITS DISTRICT MANAGER MR.PRAVEEN NAMBIAR. PUBLIC PROSECUTOR SRI. S.V. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3628 OF 2009 ------------------------------------------ Dated 11th November 2009 O R D E R Petitioner is the accused in S.T.179/2007 on the file of Judicial First Class Magistrate-IV, Kochi taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-I complaint filed by second respondent. Case of the second respondent is that cheque No.40157 dated 5/4/2006 drawn on Bank of India, issued by the petitioner towards discharge of loan was dishonoured and in spite of demand it was not paid and thereby petitioner committed an offence under Section 138 of Negotiable Instruments Act. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that petitioner had only one transaction with second respondent, for purchase of a motor bike and when the loan was availed of, as demanded, signed blank cheques were entrusted and later entire liability was discharged and some of the blank cheques were returned and Annexure-3 are those cheques and complaint is lodged based on one of the Crmc 3628/09 2 cheques and in such circumstances, continuation of the proceedings is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that Annexure-3 returned cheques establish that dishonoured cheque was one among the cheques entrusted by the petitioner while availing loan from the second respondent and it was retained, though the remaining cheques were returned and hence an offence under Section 138 of Negotiable Instruments Act is not attracted. Question whether dishonoured cheque was given by the petitioner to second respondent as canvassed by the petitioner or as claimed by the respondent is a matter for consideration by the Magistrate on evidence. Based on the submission alone, that dispute cannot be settled or the complaint quashed. Petitioner is at liberty to raise all these contentions before the learned Magistrate at the time of trial. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.