IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 795 of 2011() ------------------------ ST.1027/2010 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER(S): ACCUSED ---------------------- VELAYUDHAN P., PEZHUMKATTIL HOUSE, THIRUVANCHOOR P.O., KOTTAYAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): COMPLAINANT -------------------------- 1. GLADSON JACOB, KARICHIRA VADAKKEL HOUSE, MUTTAMBALAM, KOTTAYAM-682612 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jkk THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.795 of 2011 -------------------------------------- Dated this the 14th day of March, 2011. ORDER Notice to respondent No.1 is dispensed with in view of the order I propose to pass in this petition. 2. Petitioner is accused in S.T.No.1027 of 2010 of the court of learned Judicial First Class Magistrate-III, Kottayam for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner seeks to quash proceeding against him on the following grounds: i. The alleged transaction was on 29.10.2009 whereas Annexure-III, medical certificate issued from the Medical College Hospital, Kottayam will show that petitioner was undergoing inpatient treatment from 26.10.2009 to 30.10.2009. ii. Petitioner had some transaction with P.T.Das and given the cheque in question to the said P.T.Das as security, petitioner repaid the amount to the said P.T.Das and the latter issued Annexure-II, receipt dated 12.11.2007 acknowledging receipt of entire amount and endorsing that cheque No.O.81492 of State Bank of Travancore, Kottayam Branch (involved in S.T.No.1027 of 2010) was lost from his possession. Crl.MC No.795/2011 2 iii. Notice under Section 138(b) of the Act was not issued to the petitioner. The acknowledgment card produced along with Annexure-I, complaint would show that it was issued to one Devarajan and served on him. Learned counsel submitted that on the above grounds the complaint is liable to be quashed. 3. Question whether petitioner was undergoing inpatient treatment as claimed by him and assuming so, whether any such transaction took place on 29.10.2009, whether it is a case where the cheque was given to P.T.Das are all matters which the trial court has to decide if raised in the course of trial. 4. So far as service of notice on petitioner is concerned, it is true that photocopy of the acknowledgment card produced would show that it is addressed to one B.Devarajan while petitioner is P.Velayudhan. This Court cannot under Section 482 of the Code of Criminal Procedure (for short, “the Code”) quash the proceeding on a finding that no notice was issued to and served on petitioner. Trial court has to consider whether notice was issued to and served on petitioner. Respondent No.2 also should get opportunity to Crl.MC No.795/2011 3 adduce appropriate evidence in support of his case and give necessary explanation where it is required. Complaint in the circumstances cannot be quashed under Section 482 of the Code as prayed for. Resultantly this petition is disposed of making it clear that it is open to the petitioner to raise all his defences in the trial court as provided under law. THOMAS P.JOSEPH, Judge. cks