IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 Crl.MC.No. 542 of 2008() ---------------------------------- CC.178/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... PETITIONER/ACCUSED --------------------------------- N.S.SEBASTIAN, S/O. LATE N.M.SEBASTIAN, AGED 50 YEARS, NEDUMPURATH HOUSE, POTTANKADU P.O., IDUKKI DISTRICT-685 569. BY ADV. MR.N.M.VARGHESE MR.ROY THOMAS RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT ------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VELLATHOOVAL POLICE STATION, VELLATHOOVAL, (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA). 2. SRI. K.C. JOY, S/O. CHAKKAPPAN, MANAGER, KUNCHITHANNI BRANCH OF THE FEDERAL BANK LTD., RESIDING AT BANK QUARTERS, KUNCHITHANNI, IDUKKI DISTRICT. R1 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. R2 BY ADV. MR.N.P.SAMUEL. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 542 OF 2008 =========================== Dated this the 2nd day of December,2009 ORDER Petitioner is the accused and second respondent the de facto complainant in C.C.178/2007 on the file of Judicial First Class Magistrate Court, Adimali taken cognizance for the offences under sections 467 and 468 of Indian Penal Code on Annexure IV final report. Second respondent filed Annexure III complaint before Judicial First Class Magistrate Court, Adimali alleging that petitioner introduced M.P. Anilkumar and started an account in Chengannur Branch of the Federal Bank where second respondent was the Manager and subsequently Cheque No.324944 was presented before the Bank for encashment of Rs.9.85 lakhs shown therein as a cheque purportedly issued by Anilkumar and the cheque was presented at Kunchithanni branch of Federal Bank on 3.4.2000 and cheque was sent to Chengannur Branch for collection but during transit through courier service the cheque was lost and petitioner filed a complaint before Banking Ombudsman claiming compensation for damages. Inspite of the fact that petitioner was Crl.M.C.542/2008 2 directed to produce a duplicate cheque it was not done and the inquiry revealed that the cheque was created by the petitioner and was not issued by Anilkumar. It is contended that petitioner thereby committed the offences under sections 467 and 468 of Indian Penal Code. Learned Magistrate sent the complaint for investigation under section 156(3) of Code of Criminal Procedure. After investigation Annexure IV final report was filed. This petition is filed under section 482 of the Code of Criminal Procedure to quash the prosecution contending that it is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner, second respondent and the learned Public Prosecutor were heard. 3. There is no dispute on certain facts. Petitioner had approached the Banking Ombudsman claiming damages for the lost cheque and the Banking Ombudsman directed petitioner to obtain a duplicate cheque and present it for encashment as provided under section 45A of Negotiable Instruments Act. Petitioner then approached Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. By Annexure V order the State Consumer Disputes Redressal Forum directed the Branch Manager of the Federal Bank, Kunchithanni Branch to pay the amount covered by the cheque Crl.M.C.542/2008 3 with 18% interest and a cost of Rs.2000/-. Second respondent challenged that order before National Consumer Disputes Redressal Commission, New Delhi. By Annexure VI order, Annexure V order was confirmed. It was challenged before Apex Court in Civil Appeal 43/2009. By Annexure R2 (b) order their Lordships found that Anilkumar the account holder did not deposit any amount in the bank between 28.3.1998 the date on which the cheque is said to have been issued in favour of the petitioner and therefore it was impossible for the second respondent to get the amount credited to his account, even if the cheque had not been lost in transit as it could only be dishonoured. In such circumstances, the direction given by the Kerala State Consumer Disputes Redressal Commission under Annexure V order as well as Annexure VI order of the National Consumer Disputes Redressal Commission, New Delhi were set aside and the complaint filed by the petitioner before the State Commission was dismissed. 4. The question is whether the prosecution pending before Judicial First Class Magistrate is to be quashed as sought for. Though learned counsel appearing for the petitioner argued that Annexure IV report do not make out ingredients of an offence, final report shows that eventhough the lost cheque which was allegedly forged by Crl.M.C.542/2008 4 the petitioner was not produced, Anilkumar the account holder who allegedly issued the cheque is cited as one of the witnesses. In such circumstances, it cannot be said that there is no material at all to prosecute the petitioner. Whether the materials are sufficient to frame a charge and even if charge is framed, whether the evidence is sufficient to enter a conviction are all matters to be decided by the learned Magistrate. Petitioner is granted liberty to raise all the contentions before the learned Magistrate and seek an order of discharge. 5. Learned counsel appearing for the petitioner then submitted that a non bailable warrant is pending and in such circumstance, a day may be fixed for the appearance of the petitioner. When a non bailable warrant is pending, it is upto the petitioner to surrender and seek bail from the Magistrate. When an absconding accused surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I do not find any reason to believe that Magistrate is unaware of the provisions of law or the decisions of this court or that of the Apex Court or that Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is disposed granting liberty to the petitioner to appear before the Magistrate and apply for bail and to Crl.M.C.542/2008 5 raise all the contentions raised herein and seek an order of discharge under section 239 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006