IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.MC.No. 3855 of 2008() ------------------------- ST.1866/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): ACCUSED: ----------------------- BALAJI.V.M, 228, DR.RADHAKRISHNA ROAD(W) TATABAD, COIMBATORE, TAMILNADU-641 012. BY ADV. SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN RESPONDENT(S): COMPLAINANT/STATE: --------------------------------- 1. CAPSTOCKS & SECURITIES (INDIA) PVT.LTD., HAVING REGISTERED OFFICE AT TC 28/1786, THAKARAPARAMBU ROAD, FORT, THIRUVANANTHAPURAM-23 AND REPRESENTED BY ITS CONSULTANT-LEGAL AND COMPLIANCE, SRI.P.UNNIKRISHNAN. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3855 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2008 O R D E R The petitioner faces indictment in a prosecution for the offence punishable under Section 138 of the N.I. Act. Signature in the cheque is admitted. Handing over of the cheque is not disputed. Transaction between the parties is also admitted. 2. The petitioner has come to this Court with this petition under Section 482 Cr.P.C. on the short ground that the cheque is not issued for the due discharge of any legally enforceable debt/liability. The contention is that before encashing the cheque the respondent, as the agent of the petitioner, is bound to take the concurrence of the petitioner. In the instant case the cheque has been presented without making any reference to the petitioner and without his specific concurrence. Hence the counsel contends that the presentation of the cheque is bad. Consequently it is urged that the prosecution deserves to be Crl.M.C.No. 3855 of 2008 2 quashed invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. 3. I am afraid, I am unable to accept this contention. This contention must be raised before the learned Magistrate in the course of the trial. The contention that the conduct of the complainant in presenting the cheque is unjustified is certainly one which must be raised, considered and decided by the learned Magistrate in the course of the trial. At the moment and with the available inputs, it would be hazardous for this Court to render any authentic decision on that aspect. Relevant evidence will have to be adduced and the contentions will have to be substantiated in the course of the trial. 4. This Crl.M.C. is accordingly dismissed. I may hasten to observe that I have not intended to express any opinion on the acceptability of the contentions of the petitioner that the cheque has been presented without his concurrence. That contention can be raised before, considered and answered by the court below. Needless to say, the petitioner shall be entitled to the benefit of the directions issued in Jain Babu v. Joseph (2008 (4) KLT 16). He can appear Crl.M.C.No. 3855 of 2008 3 before the learned Magistrate through counsel and claim exemption from personal appearance. (R. BASANT) Judge tm