IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 Crl.MC.No. 521 of 2008() --------------------------------- CC.105/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, MALAPPURAM .................... PETITIONER/ACCUSED: --------------------------------- P.K. YASAR, S/O. ALAVI, PALATHUM KADATHIL (H) KAVUNGAL, MALAPPURAM. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENTS/COMPLAINANT: --------------------------------------------- 1. HAFIS NOBI,S/O.HAMZA PALATHUM KADATHIL (H) KAVUNGAL,MALAPPURAM. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI. R1 BY ADV. MR.BABU S. NAIR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.521 of 2008 -------------------------- ORDER Petitioner is the accused and first respondent, the complainant in C.C.No.105/2007 on the file of Judicial First Class Magistrate's Court, Malappuram. Petitioner would contend that the dishonoured cheque 259288, drawn in the account maintained by the first respondent in Catholic Syrian Bank, Malappuram Branch, was issued to him towards the amount legally due and suppressing that fact, first respondent lodged a complaint before the Magistrate alleging that petitioner committed theft of the cheque book, including the cheque leaf 259288 and thereby committed an offence under Section 379 of Indian Penal Code. The complaint was sent for investigation under Section 156(3) of Code of Criminal Procedure. Police, after investigation, submitted Annexure-A final report stating that the complaint is a mistake of fact. First respondent then filed a protest complaint dated 15.3.2006, CRMC 521/08 2 alleging that police has not properly investigated the case and petitioner committed an offence under Section 379 of Indian Penal Code. It was taken cognizance by the Magistrate as C.C.No.105/2007. This petition is filed under Section 482 of Code of Criminal Procedure to quash the said complaint and the cognizance taken, alleging that it is only an abuse of process of the court and petitioner did not commit any offence. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel appearing for the petitioner argued that as per the protest complaint filed before the Magistrate, the entire cheque book containing cheque leaves 259286 to 259300, was found missing on 18.10.2004 and on 19.10.2004, first respondent sent instructions to the Bank not to honour the cheque leaves and later, first respondent realised that petitioner presented one of the cheque leaves and got it dishonoured and thereby he realised that theft was committed by the CRMC 521/08 3 petitioner. It was pointed out that Cheque Leaf No.259286 was in fact issued by the first respondent to one Siddique on 20.5.2004 and when it was dishonoured, he lodged a complaint alleging an offence under Section 138 of Negotiable Instruments Act on 14.7.2004 and Annexure-D shows that Cheque Leaf No.259288 was issued by the first respondent to the petitioner on 4.10.2004 and therefore, the case of committing theft before 18.10.2004 is clearly false and therefore, the case is to be quashed. Learned counsel also argued that when Siddique, to whom one of the cheques was issued, lodged a complaint, which was taken cognizance by the Magistrate and the case of Siddque is that cheque was issued towards the amount due to him from the first respondent on 4.10.2004 and the case that the cheque book, including the said cheque leaf, was stolen by the petitioner can only be false and therefore, the case is to be quahsed. 4. Learned counsel appearing for the first respondent pointed out that though the complaint CRMC 521/08 4 filed by the petitioner alleging that first respondent committed an offence under Section 420 of Indian Penal code was also sent for investigation by the Magistrate and after investigation, a refer report was submitted, on a protest complaint filed by the petitioner, learned Magistrate took cognizance of the offence and it is pending as C.C.No.104/2007, wherein, petitioner is the complainant and first respondent, the accused and the dispute in both the cases is whether the dishonoured cheque was stolen by the petitioner or issued to him by the first respondent and therefore, both are to be tried by the same Magistrate, one after the other and in such circumstances, the case cannot be quashed. 5. On hearing the learned counsel, I find no reason to quash the complaint or the proceedings initiated by the Magistrate, especially when a protest complaint, taken cognizance by the Magistrate in respect of the very same dishonoured cheque, which according to the first respondent, CRMC 521/08 5 was stolen, is pending before the Magistrate as C.C.No.104/2007. The question to be decided in C.C. No.104/2007 includes the question whether the dishonoured cheque was issued as claimed by the petitioner or as claimed by the first respondent. Similar is the case in C.C.No.105/2007. The question is whether the dishonoured cheque is a stolen cheque or the cheque issued to the petitioner by the first respondent towards repayment of the amount due. In such circumstances, the case cannot be quashed as sought for. Petitioner is entitled to raise all the contentions raised herein before the Magistrate. He is also at liberty to seek an order of discharge under Section 245 of Code of Criminal Procedure, if charge is not so far framed by the court. Petition is disposed accordingly. 14th September, 2009 (M.Sasidharan Nambiar, Judge) tkv