IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 Crl.MC.No. 3134 of 2006() ------------------------- CC.1947/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER: ACCUSED ------------------- 1. MUJAB, S/O.SHAMEERUDEEN, 'ARAFA', 105/NEHRU NAGAR, PAYIKKULAM CHERY, VADAKKEVIL VILLAGE, KOLLAM DISTRICT. 2. SULBATH, D/O.UMAIBA, 'ARAFA', 105/NEHRU NAGAR, PAYIKKULAM CHERY, VADAKKEVILA VILLAGE, KOLLAM DISTRICT. 3. ARUN KUMAR, S/O.ASOKAN, ARUN NIVAS, KUREEPUZHA CHERRY, KOLLAM WEST VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.R.JAYAKUMAR RESPONDENTS: COMPLAINANTS ------------------------- 1. STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, ANCHALUMMOODU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.NAZARUDEEN, MANAGING PARTNER, APPLE VALLEY TEA INDUSTRIES, NEERAVIL CHERRY, PERINAD VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.S.SANTHOSH KUMAR FOR R2 PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/09/2008, ALONG WITH CRL.M.C.108/06, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.M.Cs. 3134/2006 & 108/2006 -------------------- Dated this the 4th day of September, 2008 ORDER These two cases have been heard together because C.C.Nos.596/2005 and 1947/2005, both on the files of the Judicial First Class Magistrate Court, Kollam, arise from the same transaction which are linked with each other. I will refer to the facts in Crl.M.C.108/2006 in the first instance. 2. The accused in C.C.No.596/2005 on the files of the Judicial First Class Magistrate Court-I, Kollam, is the petitioner in Crl.M.C.108/2006 under Section 482 Cr.P.C. He is being prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act. Annexure- I is the complaint wherein it is alleged that the accused had availed a personal loan of Rs.70,000/- from the complainant on 10.7.2004 agreeing to repay Rs.30,000/- on 13.8.2004 and Rs.40,000/- on 14.8.2004. Two cheques were issued by him which, when presented for collection, were returned with an endorsement “Funds insufficient”. Crl.M.Cs.108/06 & 3134/06 2 Notice of demand was met with Annexure-II reply in which the accused categorically denied any transaction between the complainant and the accused. The subscription of the signature in the cheque and handing over the same to the complainant's father is referred to Annexure-II. It is also specifically alleged therein that having presented it before the Court, the complainant had, along with his mother and the Power of Attorney holder, who has presented the complaint on behalf of the complainant, indulged in committing forgery under Section 468 of IPC. 3. The question as to whether the cheque was handed over as an inchoate negotiable instrument, not to the complainant, but to the complainant's father and as to whether there was any transaction between the complainant and the accused, are essentially matters for evidence. In the circumstances, I do not find any grounds to invoke the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C for quashing the proceedings in C.C.No.596/2005. Crl.M.Cs.108/06 & 3134/06 3 4. But I find substance in the contention raised by Mr.Santhosh Kumar, learned counsel for the petitioner especially in the nature of the stand taken in the reply notice, Annexure-II, that the Court below should have taken the sworn statement of the complainant before deciding to issue process under Section 204 Cr.P.C. It is pointed out that the complaint is presented by the Power of Attorney holder and the power of Attorney holder has given an affidavit in terms of the allegations of the complaint. He apparently had no knowledge regarding the transaction involving issuance of the cheque or lending of money to the accused. In the circumstances, I think it is only appropriate that the Court below summons the complainant in person and takes a sworn statement before proceeding with the trial of the case. 5. In the result, Crl.M.C.108/2006 is disposed of directing the leaned Magistrate to summon the complainant in C.C.No.596/2005, take his sworn statement and then further proceed with Crl.M.Cs.108/06 & 3134/06 4 C.C.No.596/2005. The Court below shall compell the appearance of the complainant before further proceeding with the case. 6. In so far as Crl.M.C.3134/2006 is concerned, petitioners are the accused in C.C.1947/2005 on the files of the Judicial First Class Magistrate Court, Kollam. the case arises out of a complaint filed by the defacto complainant alleging that the accused had committed the offences punishable under Sections 120B, 467, 468 and 471 read with Section 34 IPC in as much as that they had committed forgery in relation to two cheques which were handed over to the father of the first accused and the husband of the second accused as a security and not intended as a negotiable instrument. There was no transaction between the defacto complainant and the first accused. Nevertheless, the name of the first accused was included in the cheque to make it appear that he is the payee and other entries were also forged. The cheques in question are the cheques which have been referred to the complaint in C.C.No596/2005. Crl.M.Cs.108/06 & 3134/06 5 Having gone through the petition, I do not find any grounds to interfere with the prosecution of C.C.No.1947/2005. Since the said case is to be tried as a warrant case, it is always open to the accused to seek a discharge under Section 245 of Cr.P.C. I have not considered the other contentions raised by the accused herein. Subject to the above right of the accused, Crl.M.C. No.3134/2006 is dismissed. V.GIRI, Judge mrcs