IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 Crl.MC.No. 859 of 2008() ------------------------ ST.1583/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... PETITIONER: ACCUSED NO.4 -------------------------------- N.JAYAPRAKASH, ENNJAY ENTERPRISES ROYAL NAGAR, ASRAMAM, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENTS:- COMPLAINANT & STATE: ----------------------------------------------- 1. SWARAJ TRADERS REPRESENTED BY ITS MANAGING DIRECTOR, C.P.MUHAMMAD ANSARI S/O.K.ABDUL AZEEZ HAJI, AGED 33 YEARS RESIDING AT DARUL AMAN, NEAR DINESH BHAVAN CHIRAKKAL P.O.,KANNUR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI. M.S. BREEZE, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 859 of 2008 ========================== Dated this the 4th day of March, 2008. O R D E R The petitioner, who is the accused in S.T. No. 1583 of 2007 on the file of the Judicial First Class Magistrate-II, Kannur in a prosecution under Section 138 of the Negotiable Instruments Act involving a cheque for Rs.3,07, 492/- , seeks to quash Annexure 1 complaint and all further proceedings in S.T. No. 1583/2007 referred to above. 2. According to the petitioner, as per Annexure 4 reply notice, he had offered a sum of Rs.1,95,949/- by way of demand draft, in full settlement of all claims and had also informed the complainant that if the complainant encashed the said demand draft, it would be treated that the same was done in full and final settlement of claims or else, he should return the demand draft without encashing the same. The petitioner would have it that the acceptance of the demand draft and the encashment of the same was absolute, unconditional and unqualified and the same would amount to accord and full satisfaction of the claim within the meaning of Section 63 of the Indian Contract Act barring a prosecution for the whole amount or for the balance amount. This is a defence which the petitioner can very well put forward during the trial of the case and I refrain from making any CRL.M.C. NO. 859/2008 : 2: observation on the merits lest it might prejudice one party or the other. The ground put forward in this Crl.M.C are not sufficient to quash the complaint or the consequential proceedings. 3. In a prosecution under Section 138 of the Negotiable Instruments Act which does not involve the question of identity of the accused, the physical appearance of the petitioner need be enforced only if it is inevitable during any stage of the trial. Until then, the personal appearance of the petitioner need not be insisted by the Magistrate and in case the petitioner moves the Magistrate under Section 205/317 Cr.P.C, the Magistrate shall exempt the petitioner from appearing before the Magistrate during the pre-trial stage as well as during the trial unless the personal appearance of the petitioner is inevitable during any stage of the trial. This Crl.M.C is accordingly dismissed with the above direction. V. RAMKUMAR, JUDGE. rv CRL.M.C. NO. 859/2008 : 3: