IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.MC.No. 426 of 2009() ------------------------ ST.2205/2006 of JUDL. FIRST CLASS MAGISTRATE -V, KOZHIKODE .................... PETITIONER(S)/ACCUSED: --------------- THOMAS C. ARACKAL, AGED 62 YEARS ARACKAL TRADE LINKS, CHETHY PO, CHERTHALA, ALAPPUZHA. BY ADVS. SRI.C.V.MANUVILSAN SMT.VIDYA MANUVILSAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPT OF HOME THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKULAM. 2. M/S. KEPEES FOOD PRODUCTS LTD 8/4, FAROKE , KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR, AFSAL ALI. ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 426 OF 2009 --------------------------------- Dated this the 16th day of March, 2009 O R D E R This petition is filed to quash all further proceedings in S.T. 2205/2006 on the file of the Judicial First Class Magistrate Court- V, Kozhikode. The case is filed under Section 138 of the Negotiable Instruments Act. The complaint is produced as Annexure A1. The petitioner herein according to the complaint had purchased food products and had issued a cheque for Rs. 55,733/- towards the money due to the complainant by way of credit purchase. Later the accused paid Rs. 10,000/- towards the money due. But the balance amount Rs. 45,753/- was not paid. It is further averred that on 5.2.2006 the accused contacted the complainant over the phone and asked the complainant to encash the cheque by making the complainant believe that there is sufficient fund in his account. The accused further said to the complainant that the excess amount i.e. Rs. 10,000/- could be adjusted towards the following purchases. Now the learned counsel for the petitioner had cited the decision Crl.M.C No. 426/2009 -2- of the Division Bench of this Court reported in Joseph Sartho v. G. Gopinathan and another [2008 (4) KLT 509]. It was a case where there was an outstanding debt and a cheque was issued for Rs. 4,61,400/-. The accused had paid an amount of Rs. 2,26,400/- and the balance due was only Rs. 2,35,000/-. The cheque was presented for encashment without any endorsement to the effect regarding the payment of the amount. This court held that it cannot be permitted and an action will not lie under Section 138 of the Negotiable Instruments Act. So in other words the principle enunciated therein is to the effect that when a cheque is issued for specific amount and there has been payment of the amount subsequent to the issuance of the cheque and when the cheque is presented such for encashment without making an endorsement with respect to the money that is paid, it is not proper under the provisions of the Negotiable Instruments Act and no prosecution will lie in such cases under Section 138 of the Negotiable Instruments Act. 2. Now so far as this case is concerned, the amount due originally is Rs. 55,733/-. An amount of Rs. 10,000/- had been paid and balance amount is due. But there is a specific avernment in para 3 of the complaint to the effect that “The Crl.M.C No. 426/2009 -3- accused further said to the complainant that the excess amount i.e. Rs. 10,000/- could be adjusted towards the following purchases” Suppose there is an agreement like that and it can be proved, then one cannot find fault with for presenting a cheque for encashment of the entire amount. Suppose it is not a truthful statement, necessarily the prosecution has to fail for the reason that the cheque presented is without entries of the payment of Rs. 10,000/-. So whether there is such an agreement as alleged in the complaint is a matter which requires evidence and consideration. It is too premature a stage now to hold that whether there was such an agreement or not especially sitting in the jurisdiction under Section 482 of the Crl.P.C. Therefore it is not possible to quash proceedings at this stage and these contentions are left upon to be decided in the trial court and it will depend upon the evidence available and the appreciation of the evidence by the court on that point. With these observations, the Crl. M.C is dismissed. M.N. KRISHNAN, JUDGE vkm