IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 Crl.MC.No. 1361 of 2011() ------------------------- *CC.33/2011 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... *CC NUMBER CORRECTED AS CC NO.39/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, HARIPAD AS PER ORDER DATED 20/05/2011 IN CRL.M.A.NO.2954/2011. PETITIONER(S): ACCUSED: ----------------------------------------- SREEDHARA PANICKER,AGED 77 YEARS, RESIDING AT THOPPIL SREEBHAVAN,KUMARAPURAM, HARIPAD,ALAPPUZHA DISTRICT. BY ADVS. SRI.PEEYUS A.KOTTAM, SRI.G.ANANTHANARAYANAN. RESPONDENT(S): STATE & DEFACTO COMPLAINANT: ---------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, COCHIN- 682 031. 2. N.M.KUMAR,AGED 71,S/O.NARAYANAN, RESIDING AT ARUN NIVAS, WARRIAM VEEDU MADAM, SASTHA TEMPLE ROAD, PALLURUTHY,ERNAKULAM-682 006. R1 BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1361 of 2011 ==================================== Dated this the 02nd day of June, 2011 O R D E R This Court had issued notice to the second respondent. Notice is not returned. In view of the order I propose to pass notice to the second respondent is dispensed with. 2. This petition is filed by the accused in C.C. No.33 of 2011 of the court of learned Judicial First Class Magistrate-II, Haripad to quash proceedings against him. Second respondent filed a complaint against petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). On that complaint learned Magistrate took cognizance and issued process to the petitioner. Contention raised in this petition is that entire amount payable to the second respondent was paid by Demand Draft and cheques and it is in respect of the same transaction that the second respondent has preferred the complaint, filling up the signed blank cheque. Learned counsel made a fervent plea that petitioner who is aged about 77 years in the circumstances may not be dragged to the long drawn procedure of trial. CRL.M.C. No.1361 of 2011 -: 2 :- 3. I have gone through the copy of complaint and other relevant documents produced along with the Crl. M.C. According to the second respondent he gave loan of `3,25,000/- to the petitioner and to discharge the said liability, petitioner issued cheque dated 05.05.2006 drawn on State Bank of Travancore, Danapadi Branch, for a sum of `1,00,000/-. In paragraph 2 of the complaint it is stated that petitioner was well known to the second respondent and that the former had on earlier occasions also availed loan from the latter. Petitioner who is running a home appliance shop availed the loan from the second respondent to meet some exigencies in the year 2003. But petitioner handed over the present cheque to the second respondent to discharge the existing liability. 4. Plea of petitioner in Annexure-A6, reply notice and in this proceeding is that he had borrowed `3,25,000/- from the second respondent in the year 2002 and gave a signed blank cheque as security. The said amount was repaid in three installments as per Demand Draft dated 14.06.2005 for `1,75,000/- and cheques dated 14.10.2003 and 10.02.2004 for `50,000/- and `1,00,000/- each. Learned counsel submitted that though in answer to the statutory notice petitioner gave CRL.M.C. No.1361 of 2011 -: 3 :- Annexure-6, reply stating the above case and pleading that at the time of such transaction in January, 2002 he had given a signed, blank, undated cheque, on repayment of the entire amount as aforesaid when petitioner demanded return of the said cheque, second respondent stated that the cheque is with his lawyer, there is no averment in the complaint that the statements in the reply notice are not correct and instead the complaint only says that petitioner sent a reply accepting execution and delivery of cheque to the second respondent. According to the learned counsel in the circumstances it must be taken that statements in Annexure-A6, reply are not controverted by the second respondent. In the circumstances the complaint is vexatious and mala fide and this Court is required to interfere under Section 482 of the code of Criminal Procedure (for short, “the Code”). 5. As it is, the second respondent is armed with a cheque dated 05.05.2006 which on presentation was dishonoured for insufficiency of funds. So far as the payments covered by demand draft and cheques relied on by the petitioner is concerned, it is not as if second respondent has disputed any transaction prior to the cheque dated 05.05.2006. Whether payments allegedly made by petitioner to the second respondent CRL.M.C. No.1361 of 2011 -: 4 :- are in respect of transactions which second respondent has pleaded in the complaint is a matter which the trial court has to decide. That is not a matter to be decided in exercise of jurisdiction of this Court under Sec.482 of the Code. 6. I make it clear that I have not gone into the truth or otherwise of the contentions raised by the second respondent or petitioner. Whatever that is observed here is only for disposal of this petition filed under Sec.482 of the Code. I make it clear that it is for the trial court to decide whether the cheque in question was issued for discharge of a legally recoverable debt or liability having regard to the material before it. For the reasons stated above the request to quash proceedings against petitioner cannot be entertained. 7. Learned counsel submitted that considering the age of petitioner (77 years) and old age illness from which he is suffering he may be exempted from personal appearance in the trial court. Certainly, if a request to that effect is made before the learned Magistrate, that request has to be considered having regard to the various circumstances including that there may not be any possibility for dispute on identity of petitioner. I leave that matter to be decided by the learned Magistrate in accordance CRL.M.C. No.1361 of 2011 -: 5 :- with the factual situation and the law on the point. With the above directions this Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv