IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 Crl.MC.No. 3489 of 2006() ------------------------- STC.1638/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER(S): ACCUSED ----------------------- ALPHONSE MATHEW, W/O. ANTONY THEKKEMURI- YIL JAMES, RESIDING AT 55 HAMER STREET, GLOUCESTER GLI3 QN UNITED KINGDOM. (IN THE ABOVE CASE ADDRESS IS SHOWN AS MANJAPPALLY, KAPPAD P.O., ANAKKALLU VIA, KANJIRAPPALLI, KOTTAYAM DISTRICT.) BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): COMPLAINANT & STATE --------------------------- 1. JOY PULICKAL, S/O. JOSEPH, AGED 53 YEARS, WEST ELERI P.O., KASARAGOD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED -R2 SRI.V.K.SUNIL FOR R1 SRI.AJEY THOMAS FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3.8.2009, THE COURT ON 12.11.2009 PASSED THE FOLLOWING: ORDER IN CRL. M.A. NO. 5816 OF 2006 IN CRL. M.C. NO. 3489 OF 2006. DISMISSED 12.11.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL.M.C. NO. 3489 OF 2006 -------------------------------------------- Dated this the 12th day of November, 2009 O R D E R The accused in S.T.C. No.1638 of 2006 on the file of the Judicial First Class Magistrate's Court, Taliparamba is the petitioner. This Crl.M.C. is filed with a prayer to quash Annexure A1 complaint and all further proceedings pursuant thereto. 2. On the basis of of Annexure A1 complaint filed by the first respondent herein, the petitioner is facing indictment under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act”). The allegation is that the petitioner/accused borrowed an amount of Rs.7,50,000/- from the first respondent, promising to repay the same within one year. However, she did not repay the said amount as promised and thereafter, in discharge of the said liability, she issued a cheque dated 28.3.2006 to the first respondent, drawn on her account maintained at Federal Bank Limited, Taliparamba branch. The petitioner was working abroad. The said cheque, however, was dishonoured on its presentation on 10.4.2006, on account of insufficiency of funds in the account of the Crl.M.C. No. 3489/2006 2 petitioner. Thereafter, a lawyer notice was issued to the petitioner intimating her of the dishonour of the cheque and demanding payment of the amount within 15 days. The notice thus sent in the correct address of the petitioner was, however, returned unserved. The permanent address of the petitioner is “Thekkemuriyil house, P.O. Kappad”. It was on account of the failure of the petitioner to pay the amount within the statutorily permitted period that the first respondent herein preferred Annexure A1 complaint. Prima facie, Annexure A1 complaint and the materials produced along with the same would reveal commission of an offence under Section 138 of the N.I. Act and hence, the learned Magistrate took cognizance of Annexure A1 complaint. 3. The learned counsel for the petitioner contended that Annexure A1 complaint is vitiated for want of statutory notice. The petitioner was working abroad and after the dishonour of the cheque, no notice was issued to her in her foreign address and she did not receive any such notice. Therefore, the statutory requirement of giving notice under Section 138 of the N.I. Act has not been complied with. The further contention of the petitioner is that Annexure A1 is a foisted complaint without any bona fides and it was filed only with a view to extract money from her and, therefore, continuance of the proceedings would be nothing, but an abuse Crl.M.C. No. 3489/2006 3 of the process of the court. It was also contended that there were no transactions between the petitioner and the first respondent and, therefore, there was no occasion for her to issue the cheque in question to the first respondent. It is her case that it was on account of cheating by her father that the cheque in question happened to reach the hands of the first respondent. In short, to secure the ends of justice, Annexure A1 complaint is liable to be quashed, it is contended. 4. The petitioner/accused did not have a case that the cheque in question did not bear her signature. The said cheque was admittedly dishonoured on its presentation by the first respondent. Thereafter, statutory notice was issued to the petitioner in her permanent address. However, the same was returned unserved. That cannot be taken as a failure to comply with the statutory requirement of issuance of notice. The first respondent has produced before the court below the materials to prove issuance of the mandatory notice. It be so, the contention of the petitioner that it was not issued in her foreign address and that she did not receive such a notice cannot be prima facie accepted to hold that Annexure A1 complaint is vitiated for want of statutory notice. The contention of the petitioner that the cheque in question had reached the hands of the first respondent on account of cheating committed by her father and that she Crl.M.C. No. 3489/2006 4 was not having any transaction with the first respondent are matters of evidence and, therefore, cannot be entertained at this stage in exercise of the inherent power under Section 482 of the Code of Criminal Procedure. In short, the ground of attack that the proceedings are vitiated for want of statutory notice cannot be sustained for the reason that the first respondent had produced materials showing issuance of notice in the permanent address of the petitioner within the statutorily prescribed period. If that be so, the petitioner cannot be heard to say that a prima facie case was not established by the first respondent. In that view of the matter, I cannot find any illegality on the part of the learned Magistrate in taking cognizance of Annexure A1 complaint. In the circumstances, I do not find any merit in the above Crl. Miscellaneous Case and it is accordingly dismissed. I may hasten to add that the dismissal of the Crl. M.C. will not fetter the rights of the petitioner/accused to raise all the contentions available to her before the learned Magistrate. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. No. 3489/2006 5 C.T. RAVIKUMAR, J. CRL.M.C. NO. 3489/2006 O R D E R 12th November, 2009 Crl.M.C. 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