IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.MC.No. 1694 of 2008() ------------------------------------ ST.1191/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KOLENCHERRY .................... PETITIONER/ACCUSED --------------------------------- DAVID.P.M. @ RAJAN, S/O.MATHAI, MARGIN FREE MARKET, ADIMALY, IDUKKI DISTRICT POTTACKAL HOUSE, PATHINALAM MILE MANNAMKANDAM, VALARA PO, DEVIKULAM. BY ADV. SMT.C.S.SHEEJA RESPONDENT/COMPLAINANT AND STATE: ------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. HYDROSE, S/O.SYED MUHAMMED, KUMMATTU PUTHENPURAYIL HOUSE, PATTIMATTOM, KUNNATHUNADU, ERNAKULAM R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R2 BY ADV. MR.K.A.SHAMSUDEEN, MR.K.I.ABDUL RASHEE. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1694 of 2008 ORDER ON CRL.MA. NO.2186/2008 IN CRL.MC. NO.1694/2008 DISMISSED 17/11/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1694 of 2008 -------------------------- ORDER Petitioner is the accused in S.T.No.1191/2006 on the file of Judicial First Class Magistrate's Court, Kolenchery, taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-A 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 learned Magistrate should not have taken cognizance of the offence. The contention is that in Annexure-E notice, sent under Section 138(b) of Negotiable Instruments Act, the date of the cheque is shown as 31.10.2006 and as is clear from Annexure-F copy of the dishonoured cheque, it is dated 31.1.2006 and therefore, there is no notice demanding the amount covered by Annexure-F dishonoured cheque and hence, no offence, as alleged, is committed. It is also CRMC 1694/08 2 contended that out of the amount covered by the dishonoured cheque, evidenced by Annexure-D receipt, Rs.1,40,000/- was paid on 9.3.2006 and therefore, the proceedings is to be quashed. 2. Learned counsel appearing for the second respondent submitted that the question whether payment was made or not is a matter for evidence and the receipt is not admitted and when petitioner has no case that apart from the cheque mentioned in Annexure-B agreement, when the amount is demanded, it is the amount covered by the said cheque and therefore, the case cannot be quashed. 3. On hearing the learned counsel, I do not find any reason to quash the proceedings as sought for by the petitioner. The question whether part of the amount covered by the dishonoured cheque was paid or not, is a matter for evidence and based on a receipt, which is not admitted, produced in this petition, the case cannot be quashed. So also, when petitioner has no case that apart from the cheque CRMC 1694/08 3 mentioned in Annexure-B agreement, any other cheque was given to the second respondent and in the notice, the dishonoured cheque is stated to be the cheque handed over to the second respondent as consideration for transfer of Margin Free Market, I do not find that there would be any scope for doubt with regard to the amount demanded as covered by the dishonoured cheque. In any way, it is a matter for evidence and invoking the extraordinary powers of this Court under Section 482 of Code of Criminal Procedure, the case cannot be quashed. Petition is dismissed. 17th November, 2009 (M.Sasidharan Nambiar, Judge) tkv