IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 Crl.MC.No. 42 of 2011 ----------------------- ( CC.69/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PALA ) PETITIONER/ACCUSED: --------------- SHALITTA JACOB, AGED 38 YEARS, D/O. JACOB, PAVAKKAL HOUSE, THRIKANNYA, ELANADU P.O., THRISSUR BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.R.REKESH RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------ 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. BABY MATHEW, AGED 45, PULIKAL VEEDU, KURIANAD P.O., KOTTAYAM. BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.42 of 2011 -------------------------------------- Dated this the 14th day of January, 2011. ORDER Petitioner is accused in C.C.No.69 of 2004 of the court of learned Judicial First Class Magistrate, Pala for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). That case arose on a complaint preferred by respondent No.2 who alleged that petitioner borrowed `.1,50,000/- from him on 06.04.2001 agreeing to repay the said amount after two years with interest at the rate of 13% per annum and for discharge of that liability, issued Annexure-2, post dated cheque for `.2 lakhs. That cheque was dishonoured for insufficiency of funds and as signature of the drawer differed, as per memo dated 24.12.2003. Thereon respondent No.2 has preferred the complaint. Petitioner, in this proceeding has contended that all allegations are false. It is contended that while it is the specific case of respondent No.2 that the alleged transaction was on 06.04.2001 when petitioner received the amount from respondent No.2 in person and signed cheque in his presence, petitioner was abroad on that day as revealed from the documents produced as annexures in this proceeding. Further contention is that the cheque was not drawn on the account maintained by petitioner which is a necessary ingredient to attract the offence under Section 138 of the Act. It is lastly contended that signature of the drawer differed in the cheque as revealed from Annexure-3, memo and there was no proper notice to the petitioner as contemplated under Section 138(b) of Crl.M.C.No.42/2011 2 the Act. On these grounds, complaint and proceedings in C.C.No. 69 of 2004 are sought to be quashed. Learned counsel has placed reliance on the decision of the Supreme Court in Jugesh Sehgal v. Shamsher Singh Gogi (2009 KHC 801) where it is held that to attract offence under Section 138 of the Act a cheque should have been drawn on the account maintained by the accused. I have heard learned Public Prosecutor as well. 2. The thrust of the argument is that while according to respondent No.2 the transaction took place on 06.04.2001 and petitioner allegedly signed the cheque in his presence, on that day, documents produced in this proceeding would show that on that day petitioner was abroad and hence the case of respondent No.2 can only be utter falsehood. 3. The question whether petitioner was abroad on the relevant day as the documents revealed (as claimed by petitioner) or she was present in the locality and issued the cheque are all matters which the trial court has to decide after recording evidence. On the plea raised by the petitioner that she was abroad on the relevant day or the documents produced to support that plea, the complaint cannot be thrown out, invoking jurisdiction under Section 482 of the Code of Criminal Procedure (for short, “the Code”). Now I am concerned with the averments in the complaint and whether the averments constituted an offence punishable under Section 138 of the Act. Other contentions regarding Crl.M.C.No.42/2011 3 the account on which the cheque was drawn, whether it was maintained by petitioner or not, and whether offence under Section 138 of the Act is attracted for the reason of difference (if any) in the signature of the drawer and whether proper notice has been issued and served on petitioner are all matters which has to be decided by the trial court. 4. Having heard learned counsel for petitioner and the Public Prosecutor I am not persuaded to think that this Court should interfere under Section 482 of the Code and quash the proceedings without giving parties opportunity to adduce evidence in support of their contentions. 5. It is submitted by learned counsel that petitioner is now abroad and proposed to come to her native place by the end of this Month. Learned counsel requested that petitioner may be granted permanent exemption from appearance in the court below. 6. While exercising power under Section 482 of the Code it is not proper for this Court to grant permanent exemption. That is a matter to be decided by the trial court at the first instance. Hence I am not inclined to grant relief in this proceeding. But I make it clear that it will be open to the petitioner to move appropriate application for permanent exemption and for appearance in the court below through lawyer during the pendency of the proceedings as laid down by this Court in Jain Babu v. Joseph (2008 (4) KLT 16) and if any request in that behalf is made, learned Magistrate shall consider that request Crl.M.C.No.42/2011 4 having regard to the circumstances stated including that petitioner is abroad and since no question of identity may be involved. I am however not expressing any opinion as to the final order to be passed by the learned Magistrate in case such an application is filed. With the above observation this petition is closed. THOMAS P.JOSEPH, Judge. cks