IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 2004 of 2009() ------------------------- ST.218/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER(S): ACCUSED: ----------------------------------------- UNNIKRISHNAN.S., UNNI NIVAS, KOLLAMKONAM, VILAPPILSALA P.O., THIRUVANANTHAPURAM. BY ADV. MR.S.D.ASOKAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. UNION BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, THIRUVANANTHAPURAM MAIN BRANCH, STATUE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2004 of 2009 -------------------------- ORDER Petitioner is the accused in S.T.No.218/2007 on the file of the Judicial First Class Magistrate's Court-III, Thiruvananthapuram. The learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act on Annexure-A complaint and Annexure-B affidavit, filed in lieu of the sworn statement. This petition is filed under Section 482 Cr.P.C. to quash the complaint and the cognizance taken contending that learned Magistrate should not have taken cognizance of the offence. It is contended that subsequent to the dishonour of the cheque, petitioner had paid double the amount covered by the cheque to the first respondent Bank and first respondent had issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on CRMC 2004/09 2 10.5.2007 and subsequently notice under sub-section (4) of Section 13 of the SARFAESI Act was also issued after filing of the complaint and when action is initiated under the SARFAESI Act, the prosecution against the petitioner is only an abuse of process of the court and it is only to be quashed. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for the petitioner is that when petitioner had already paid double the cheque amount to the first respondent, there is no legally enforceable debt to be discharged and therefore, learned Magistrate should not have taken cognizance of the offence. It is also pointed out that there is no mens rea necessary to constitute an offence under Section 138 of the Negotiable Instruments Act and therefore, continuation of the proceedings is only an abuse of process of the court. The learned CRMC 2004/09 3 counsel also argued that attempt of the first respondent is to coerce the petitioner to pay the amount due under the loan transaction and under Section 482 Cr.P.C. when there is no chance for a conviction, continuation of the proceedings is unnecessary and waste of time of the court and therefore, the proceedings is to be quashed. 4. When the relief sought for in the petition is to quash the complaint and the cognizance taken by the learned Magistrate, question to be decided is whether the allegation in the complaint, if accepted as correct, constitute the offence and if not whether continuation of the proceedings is an abuse of process of the court. It cannot be disputed that if the allegations in the complaint are accepted in their entirety, Annexure-A complaint is to be accepted as correct. An offence under Section 138 of the Negotiable Instruments Act is attracted, even if the case of petitioner is accepted and it is taken that subsequent to the CRMC 2004/09 4 dishonour of the cheque and failure of the petitioner to pay the amount covered by the dishonoured cheque on demand and thereby completion of the commission of the offence, double the amount covered by the dishonoured cheque was paid. Such payment will not result in obliterating the offence already committed and therefore, for the reason that there was payment of the amount covered by the dishonoured cheque later, though it may enable petitioner to get the offence compounded with the consent of first respondent, the case cannot be quashed. 5. Similarly, based on the notice issued under the SARFAESI Act also, it cannot be said that the complaint is not maintainable. If any action was taken after commission of the offence under the SARFAESI Act, it will not affect the pending criminal prosecution. In such circumstances, I find no reason to quash the complaint or the proceedings as sought for. Petitioner is entitled to agitate CRMC 2004/09 5 all the questions raised in this petition, at the time of trial before the trial court. The petition is dismissed. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv