IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 33560 of 2008(T) -------------------------- ST.567/2006 of J.M.F.C.-II,TRIVANDRUM .................... PETITIONER(S): --------------- XAVIER D'CRUZ,ETHALIN HOUSE, T.C. 44/613 VALIYATHURA. BY ADV. SRI.P.BABU KUMAR RESPONDENT(S): --------------- 1. M/S SHRIRAM INVESTMENTS LTD., THIRUVANANTHAPURAM BRANCH, 2ND FLOOR, SREEADAN BUILDING, CONVENT ROAD, VANCHIYOOR, TIRUVANANTHAPURAM, REP BY ITS BRANCH MANAGER AND POWER OF ATTORNEY HOLDER BINO THOMAS 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. RESERVE BANK OF INDIA, REP. BY ITS REGIONAL MANAGER, RESERVE BANK OFFICE, THIRUVANANTHAPURAM. 4. UNIT TRUST OF NDIAI (UTI) REP. BY ITS BRANCH MANAGER, PATTOM BRANCH, THIRUVANANTHAPURAM. R2 BY GOVT. PLEADER SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 33560 of 2008 T - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of November, 2008 JUDGMENT The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. Proceedings were initiated and cognizance was taken in 2006, as is indicated by the number of the case registered as S.T. 567 of 2006. The petitioner had entered appearance and was enlarged on bail. Subsequently, consequent to his non-appearance, coercive processes have been issued against him. The petitioner finds such processes issued by the learned Magistrate chasing him. He apprehends imminent arrest. 2. The petitioner has now come to this Court with this petition under Article 226/227 of the Constitution with a prayer that the prosecution initiated against him may be quashed. 3. What are the reasons? The learned counsel for the petitioner first of all submits that the petitioner is only a surety in a hire purchase agreement. No action has been taken against W.P.C.No. 33560 of 2008 2 the hirer and no proceedings has been initiated against the hypotheca and in these circumstances the prosecution initiated against him is bad. Secondly it is contended that unconscionable interest is claimed and this again is contrary to the provisions of law. The third contention raised on merits is that the cheque was not issued for the due discharge of any legally enforceable debt/liability, but was issued as a blank signed cheque as security when the hire purchase agreement was entered into. 4. At this early stage and in this proceedings under Article 226/227 it is not necessary for me to deal with the contentions on facts raised or express any final opinion on the acceptability of the contentions raised. Suffice it to say that absolutely no circumstances have been pointed out to me which can justify or warrant the invocation of the extra ordinary inherent jurisdictions under Article 226/227 of the Constitution or under Section 482 Cr.P.C. It is for the petitioner to appear before the learned Magistrate and raise all these contentions in the trial which is to be held by the learned Magistrate. W.P.C.No. 33560 of 2008 3 5. Lastly and finally the counsel prays that there may be a direction to the Magistrate to consider his application for bail on the date of surrender itself. No special or specific direction appears to be necessary. Sufficient general directions have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 6. This Writ Petition is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. 7. Issue copy today itself. (R. BASANT) Judge tm