IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Crl.MC.No. 2572 of 2007() ------------------------- CC.1874/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): --------------- SASIDHARAN, S/O.KARUNAKARAN, VADAKKATHIL VEEDU, MUNTROTHURUTH, KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. TAHSILDAR, KOLLAM. 3. JASMIN BABU, AMBILI BHAVANAM, PRAYAR SOUTH, CLAPPANA, ALUMPEEDIKA P.O., KARUNAGAPPALLY. R1 BY P.P.SRI.B.JAYASURYA ADV. SRI.S.SANAL KUMAR FOR R3 SMT.BHAVANA VELAYUDHAN FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.M.C.No.2572 of 2007 ----------------------------------------- Dated this the 7th day of April, 2010 ORDER Petition filed to quash Annexure-A1 complaint. 2. A complaint is filed by second respondent herein alleging that petitioner committed offence under Section 138 of the Negotiable Instruments Act ('the Act' for short) in respect of a cheque issued by the petitioner for the discharge of liability of Rs.4,00,000/- towards the respondent. The said cheque No.944758 was dishonoured on presentation. The petitioner did not pay the amount in spite of the notice which was returned “unclaimed”. 3.Learned counsel for the petitioner submitted that there is no consideration for the cheque and as per Annexure-A2 judgment of the civil court, it was found that there was no consideration and hence Annexure-A1 complaint may be quashed. Learned counsel for respondents argued that only because there is a judgment of the civil court, it may not be made a ground for quashing the complaint under Section 138 of the Act. 4. On hearing both sides and on going through the Crl.M.C.No.2572 of 2007 2 documents produced, I find that there was a civil suit between the same parties in respect of the same cheque. Both the cases are more or less on same set of facts. O.S.413/2004 was filed by the respondent to realise the amount and the said suit was dismissed. In the judgment in the said suit vide Annexure-A2 it is held that all facts and circumstances brought out in evidence would show that the cheque is not supported by consideration as claimed by the plaintiff. Both sides would agree that the said judgment has not been challenged and it has become final. 5. The judgment in O.S.413/2004 was pronounced as early as 31.8.2006 about four years back, and in spite of the fact that the criminal proceedings are pending the judgment is not challenged. In the above circumstances, I find that continuance of proceedings on the basis of Annexure-A1 will only amount to abuse of process of court, since there will be no scope for a successful prosecution. It is seen from the judgment of the civil court that several witnesses were examined and documents were also produced in the said case and the court has analysed the evidence adduced at length. Crl.M.C.No.2572 of 2007 3 6. Hence, the following order is passed. 1. Annexure-A1, in so far as it relates to petitioner, is hereby quashed. 2. Petitioner shall not be proceeded against on the basis of Annexure- A1. Petition is allowed. K.Hema, Judge cms