IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.MC.No. 2148 of 2009 ------------------------- ST.311/2006 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... PETITIONER/ACCUSED: ------------------------- JOJI JOSEPH, S/O.JOSEPH, EZHARAYATH HOUSE, NEELANCHERY P.O., KALIKAVU, MALAPPURAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. M/S.SHRIRAM INVESTMENT LTD., CALICUT, REP.BY POWER OF ATTORNEY HOLDER MR.PRAKASH, S/O.K.MADHAVAN, 27 YEARS, SREEPADAM BUILDINGS, CALICUT-32. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR, SRI.JIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2148 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009 O R D E R Petitioner is the accused in ST No.311/2006 on the file of the Judicial Magistrate of First Class-IV, Kozhikode. This petition is filed under Section 482 Cr.P.C to quash the proceedings contending that ingredients of an offence under Section 138 of the Negotiable Instruments Act is not attracted on Annexure A complaint. The argument of the learned counsel appearing for the petitioner is that Annexure A complaint shows that the dishonoured cheque was issued for Rs.6 lakhs in favour of the 1st respondent Company towards due discharge of a legally recoverable debt and what was the debt is not disclosed and in fact it was a loan transaction for purchase of a four wheeler and petitioner did not avail of the loan as there was ban for registration of four wheel chassis as stage carriage and there is no legally recoverable debt to be discharged and therefore an offence under Section 138 is not attracted. When a petition is filed to quash a complaint invoking the inherent powers under Section 482 Cr.P.C, what is to be decided is whether the averments in the complaint, if accepted as true would Crl.M.C: 2148/09 -:2:- make out the ingredients of an offence or not. Annexure A complaint shows that the dishonoured cheque, according to the 1st respondent, was issued by the petitioner towards the due discharge of a legally recoverable debt. It also shows that the cheque was dishonoured for want of sufficient funds and in spite of notice demanding the amount covered by the dishonoured cheque, it was not paid and therefore the offence under Section 138 was committed. The question whether there was a legally recoverable debt as alleged in the complaint or claimed by the petitioner in this petition is to be decided only on the evidence to be let in before the trial Magistrate. Petitioner is not entitled to approach this Court to quash the complaint based on his contention that the dishonoured cheque was not issued towards the discharge of a legally recoverable debt and that it was not issued towards discharge of a debt. These are facts which are to be proved before the trial Magistrate at the time of evidence. Petition is dismissed with liberty to raise the contentions at the trial. M. SASIDHARAN NAMBIAR, JUDGE ttb