IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Crl.MC.No. 3908 of 2005 ------------------------- ST.285/2003 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER/ ACCUSED. ----------------------- CHANDRIKA VIJAYAN, W/O.VIJAYAN, THODUKATTIL HOUSE, POTTASSERY POST, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.M.S.ROY SRI.T.MADHU RESPONDENTS: COMPLAINANT. --------------------------- 1. SREE RAM INVESTMENTS LTD., REPRESENTED BY THE POWER OF ATTORNEY HOLDER OF THE MANAGING DIRECTOR, SRI.B.S.VIMAL KRISHNAN, S/O.BALAKRISHNAN PILLAI, AGED 33 YEARS, ASST. EXECUTIVE, SREE RAM INVESTMENTS LTD., KOLLAM BRANCH, NAZEEMA COMPLEX, HOSPITAL ROAD, KOLLAM 1. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE MANAGER, SOUTH INDIAN BANK LTD., POTTASSERY BRANCH, PALAKKAD. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BAN FOR R3 SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 BY PUBLIC PROSECUTOR MR. THOMAS JOHN AMBOOKKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 14233/2005 IN CRL.M.C. NO.3908 OF 2005 DISMISSED. 16-2-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S.TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3908 of 2005 ======================= Dated this the 16th day of February 2009 ORDER This petition is filed by the sole accused in S.T.No.285/2003 pending on the file of the Court of Chief Judicial Magistrate, Kollam with the prayer to quash Annexure-A1 complaint and all further proceedings in the above case. 2. Heard the learned counsel appearing for the petitioner and the first respondent. 3. It is submitted by the learned counsel for the petitioner that the allegation against the petitioner in Annexure-A1 complaint is that the petitioner was a guarantor for the hire purchase agreement executed between her brother Mr.Sahadevan and the first respondent financing company in respect of purchasing a vehicle Tata 1312 bearing registration No.KL-4E-124 for Rs.3,77,125/-. Towards part payment of the same, the petitioner has issued a cheque No.363297 dated CRMC. 3908/2005 -2- 2-4-2003 for Rs.1,25,708/- drawn on the South Indian Bank Ltd., Potassery Branch, Palakkad, the third respondent herein. When that cheque was presented for collection by the first respondent herein, it was dishonoured for want of sufficient funds in the account of the petitioner. Thereafter, the first respondent filed Annexure-A1 complaint against the petitioner. The learned Magistrate took cognizance of the same for the offence under Section 138 of the Negotiable Instruments Act and initiated proceedings in S.T.No.285/2003 pending on the file of the Chief Judicial Magistrate's Court, Kollam. Summons was issued to the petitioner, which was not received by her and she came to know about the case only after getting non-bailable warrant issued by the learned Magistrate. The vehicle was already re-possessed by the first respondent as mentioned in the letter issued by the first respondent to Mr. Sahadevan, the brother of the petitioner, a copy of which is produced as Annexure-A2. The amount due towards the hire purchase agreement after re-possession of the vehicle by the financier is shown in Annexure-A2 as Rs.64,425/-. Therefore, the entire amount of Rs.1,25,708/- shown in Annexure-A1 complaint is not due from the petitioner,the CRMC. 3908/2005 -3- accused in S.T.No.285/2003 and the proceedings initiated against the petitioner on the basis of post dated cheque which was issued only on 2-4-2003 is not maintainable for the reason that the vehicle was already repossessed by the financier. This petition is opposed by the learned counsel appearing for the first respondent and submitted that all these contentions can be raised by the petitioner before the Magistrate's Court. 4. It is revealed from the petition and also from Annexure- A1 complaint that hire purchase agreement was executed between one Sahadevan, who is the brother of the petitioner herein, and the first respondent regarding the purchase of vehicle No. KL-4E 124 for an amount of Rs.3,77,125/-. That hire purchase agreement is not produced. Therefore, the terms and conditions of that agreement is not clear and cannot be verified. Subsequently, the petitioner herein has issued a cheque for Rs.1,25,708/- on 2-4-2003 which was dishonoured by the Bank for insufficiency of funds in the account of the petitioner and Annexure-A1 complaint was filed after issuing registered notice to the petitioner on 2-5-2003, copy of which is produced as document No.4 along with Annexure-A1 complaint. CRMC. 3908/2005 -4- Acknowledgment card signed by the petitioner/ accused was also produced as document No.5 along with Annexure-A1 complaint. Whether copy of the lawyer notice was served to the petitioner as revealed from document No.6 and whether a valid demand notice was there and the amount due from the petitioner or from Mr.Sahadevan under the cheque in question or under the hire purchase agreement etc. are matters to be decided by the learned Magistrate after considering the evidence to be adduced by the complainant. The petitioner/accused will also get an opportunity to adduce evidence on the defence side. Whether the offence under Section 138 of the Negotiable Instruments Act will lie against the petitioner will also be decided. Learned counsel appearing for the petitioner has relied on Annexure-A2 letter issued by the first respondent financier to Mr. Sahadevan wherein the re-possession of the vehicle was mentioned. That letter is not seen sent to the petitioner herein, but to the brother of the petitioner who is not a party in this petition. The custody of that document with the petitioner herein and whether it can be acted upon and the date of repossession of the vehicle etc. are also to be considered by the learned Magistrate in CRMC. 3908/2005 -5- S.T.No.285/2003 while deciding the case. The inherent jurisdiction under Section 482 of Cr.P.C. can be invoked sparingly and with the abundant caution. One of the grounds mentioned in this petition that the petitioner being a young lady, aged 33 years and has to travel from Palakkad to Kollam to attend court proceedings cannot be accepted as a ground to allow this petition. The petitioner herein can file a petition for exemption of personal appearance before that court. The learned Magistrate can consider such prayer and direct the petitioner to appear before the court only if it is absolutely necessary. Considering the facts and circumstances of this case and also the averments in this petition, I find that there are no sufficient grounds to invoke the jurisdiction under Section 482 of Cr.P.C. This petition is devoid of merits and is dismissed. M.C. HARI RANI JUDGE ks.