IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.MC.No. 4684 of 2003(A) -------------------------- CC.1450/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER(S): ACCUSED NO.3 ------------------------------------------- P.T.THOMAS DHANAVARDHAN ENTERPRISES BEELA PLAZA, NO.41/590 KRISHNASWAMY ROAD, COCHIN-35. BY ADV. DR.P.S.KRISHNA PILLAI SRI.H.VINOD RESPONDENT(S): COMPLAINANT ------------------------------------------- 1. CEBY BENNY, D/O.CELIN BENNY BETS VILLA, PIPELINE JUNCTION PALARIVATTOM, COCHIN – 25 REPRESENTED BY POWER OF ATTORNEY HOLDER CELIN BENNY, W/O.LATE BEENY, BETS VILLA PIPELINE JUNCTION, PALARIVATTOM COCHIN – 25. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.NISHA BOSE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Crl.M.C.No.4684 of 2003 --------------------------------------------- Dated this the 23rd day of September, 2010 ORDER The petitioner is accused No.3 in C.C.No.1450 of 2002 on the file of the court of the Judicial Magistrate of the First Class, Aluva. This Crl.M.C. is filed by the petitioner under Section 482 of the Code of Criminal Procedure to quash Annexure A complaint filed by the first respondent. 2. The first respondent filed the complaint under Section 138 of the Negotiable Instruments Act against three accused persons. The allegations made in Annexure A complaint, in a nutshell, are the following : Accused No.3 owed a debt of Rs.1,80,000/- to the complainant. In discharge of the debt, accused No.3 issued a cheque dated 21.1.2002 for a sum of Rs.1,80,000/- drawn on Dhanalakshmi Bank, Palluruthy Branch, Ernakulam, in the account of the first accused. The cheque was originally issued by the first accused to the second accused Company and that cheque was endorsed in favour of the complainant by accused WPC No.4684/2003 2 No.3 and one Arun Varma, the authorised signatories of the second accused Company. The cheque was dishonoured and accordingly, the complaint was filed. 3. The petitioner contended that he is wrongly described as the Managing Director of the second accused Company. The cheque was drawn by the first accused and even going by the averments in the complaint, accused No.3 cannot be held to be liable under Section 138 of the Negotiable Instruments Act. It is contended that Arun Varma is the Managing Director of the second accused Company and the petitioner is only a paid employee of that Company. It is also stated that the second accused Company is facing liquidation proceedings before the High Court of Kerala. According to the petitioner, he is not the drawer of the cheque and therefore, he has not committed the offence. It was the Company who endorsed the cheque in favour of the complainant. Several other contentions are also raised in the memorandum of Crl.M.C. 4. On a perusal of the complaint and taking into account the contentions put forward by the petitioner, I am of the view that disputed questions of fact are involved in the case. It would WPC No.4684/2003 3 be premature, if the application is considered under Section 482 of the Code of Criminal Procedure. It is only proper to consider the contentions of the petitioner at the time of trial. In these circumstances, I do not think it is proper to quash the complaint on the contentions raised by the petitioner. All the contentions of the petitioner are left open to be considered at the time of trial. The Crl.M.C. is closed with the aforesaid observations. K.T.SANKARAN, JUDGE csl