IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.MC.No. 3508 of 2006 ------------------------- ST.783/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... PETITIONER: ACCUSED ----------------------- K.P.GIRISH, AGED 30 YEARS, ADVOCATE, S/O. KUNHIKANNAN, KANDATHIL PURAYIL HOUSE, MALOOR P.O., KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: COMPLAINANT --------------------------- 1. M/S. ENKEY TRADERS, 29/363 A, NUT STREET N.H.ROAD JN., VATAKARA, KOZHIKODE, PROPRIETOR N.K.MUHAMMED (DIED ON 12.1.2006).HIS LEGAL HEIRS 1)SRI. N.K.ABOOBAKER HAJI, S/O. ABDULLA MUSLIAR, AGED 77 YEARS. 2) N.K. KUNHAYISHA, W/O. N.K. ABOOBAKER HAJI, AGED 65 YEARS. 3)N.K.JASEELA, D/O. LATE N.K.MUHAMMED HAJI, AGED 26 YEARS, 4) N.K.JAFFER, S/O. LATE MUHAMMED, AGED 24 YEARS. 5) N.K.SABIRA,D/O.LATE MUHAMMED,AGED 22 YEARS ENKY COTTEGE,P.O.IRINGAL,KOYILANDY TALUK, KOZHIKODE DISTRICT., REP.BY POWER OF ASTTORNEY HOLDER MR.R.MANI, S/O. RADHAKRISHNAKURUP,ASST.MANAGER, M/S.ENKEY TRADERS, RESIDING AT KINARKUZHICHA PARAMBIL,CHERUPURAM AMSOM DESOM,POOLAKKOOL PO.,VATALEENA TALUK, KOZHIKODE DIST. 2. STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3508 of 2006 =========================== Dated this the 21st November 2008 ORDER The petitioner herein is the sole accused in S.T.No.783/2006 on the file of the Judicial First Class Magistrate Court, Vatakara. The above case was filed alleging offence punishable under Section 138 of the Negotiable Instruments Act on the basis of the complaint filed by the power of attorney holder of the legal heirs of deceased N.K.Mohammed who was the proprietor of M/s. Enkey Traders. It is further alleged in the complaint that the accused purchased cement on credit basis and issued a cheque on 17-12-2005 for an amount of Rs.60,000/- for the balance amount towards the value of the goods purchased by him. Annexure-A1 is the true copy of the cheque, which was dishonoured as funds insufficient. Thereafter, Annexure-A2 lawyer notice was issued on 21-1-2006 demanding the amount which was received by the accused on 31-1-2006. But he did not pay the amount and no reply notice was also sent. Subsequently, the above proceedings were initiated by the power CRMC.3508/2006 -2- of attorney holder of the legal heirs of deceased N.K.Mohammed by filing the complaint. 2. This petition is filed under Section 482 of Cr.P.C.to quash the proceedings against the petitioner/accused in S.T.No.783/2006 pending before the Judicial First Class Magistrate Court, Vatakara. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor also. 4. It is submitted by the learned counsel for the petitioner that N.K.Mohammed, Proprietor of M/s. Enkey Traders died on 12-1-2006 as mentioned in the complaint,Annexure-A4, whereas the lawyer notice dated 21-1-2006 was issued by the principal complainant, who was not alive on that date. On a further reading of of paragraph 1 of Annexure-A-4, it is stated as follows: “This complaint is filed by his legal heirs of the deceased N.K.Mohamood as the principal complainant. The power of attorney duly executed by the principal complainant is produced herewith as document No.2. This Hon'ble court may kindly accept the power of attorney and permit the P/A holder to conduct the case on behalf of the principal CRMC.3508/2006 -3- complainant in the above matter.” 5. It is admitted that no reply notice has been issued by the accused disputing the averments therein. Whether Annexure-A1 lawyer notice is sufficient or not to initiate the proceedings under Section 138 of the Negotiable Instruments Act is a point to be decided by the trial court. Insufficiency of the notice, if any, also can be decided by the concerned Magistrate. 6. It is well settled that the inherent powers under Section 482 of Cr.P.C. must be exercised in rarest of rare cases either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. I find no reason in the present case to take a view that the continuance of the proceedings against the petitioner herein before the concerned Magistrate's court may amount to the abuse of the process of the court or to hold that quashing of the impugned proceedings would secure ends of justice. In the circumstances, the Crl.M.C. is dismissed. M.C. HARI RANI JUDGE ks. CRMC.3508/2006 -4-