IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 Crl.MC.No. 1140 of 2010() ------------------------- CMP.NO.93/10 IN CC.2/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER(S): A2: ------------------------------ MINIMOL, W/O. SALIM MOHAMMED, ASSISTANT MANAGER, SBT, JAGATHY BRANCH, POOJAPURA, THIRUVANANTHAPURAM. BY ADVS. MR.SASTHAMANGALAM S. AJITHKUMAR, MR.P.M.SANEER. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NASIM, S/O. ABDUL AZIS, KARIMPALAYIL, PONGANADU, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1140 of 2010 -------------------------- ORDER Petitioner is the accused in C.C.No.2/2010 on the file of Judicial First Class Magistrate's Court-I, Attingal, taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-G complaint filed by the second respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that an offence under Section 138 of Negotiable Instruments Act is not attracted, as the dishonoured cheque was not issued in the account maintained by the petitioner. Petitioner produced Annexure-E communication received from the Bank, in answer to Annexure-D letter sent by the petitioner, to show that the account does not relate to the petitioner. It is on that basis, the cognizance taken is sought to be quashed. 2. Learned counsel appearing for the petitioner was heard. 3. It cannot be disputed that an offence under Section 138 of Negotiable Instruments Act will not lie CRMC 1140/10 2 if the dishonoured cheque was not issued in the account maintained by the petitioner. But, based on Annexure-E communication, it is not possible to hold that the dishonoured cheque was not issued in the account maintained by the petitioner. The number of the cheque seen in Annexure-E is different from the number of the cheque shown in Annexure-G complaint. Learned counsel submitted that it was only a clerical mistake committed by the counsel in preferring the complaint. Petitioner is at liberty to raise all these contentions before the Magistrate. Learned counsel submitted that presence of the petitioner may be dispensed with. This Court has already held that if an application is filed under Section 205 of Code of Criminal Procedure in the trial of an offence under Section 138 of Negotiable Instruments Act, it shall be liberally considered. In such circumstances, petition is disposed granting liberty to the petitioner to raise all the contentions before the learned Magistrate. 6th April, 2010 (M.Sasidharan Nambiar, Judge) tkv