IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.MC.No. 778 of 2009() ------------------------ CC.310/2004 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR .................... PETITIONER(S): ACCUSED: ------------------------------------------- SUBHA,D/O.RAMAKRISHNAN, THANNIPPILLIL VEEDU, MALIANKARA, MOOTHAKUNNAM P.O. BY ADV. MR.S.RAJEEV RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------- 1. K.DINESH KUMAR, NEERANJANAM WEST, PERUVANNAM WEST, KIHAKKEPRAM, NORTH PARAVOOR. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.778 OF 2009 ------------------------------------------ Dated 2nd June 2009 O R D E R Petitioner is the accused in C.C.310/2004 pending before Judicial First Class Magistrate, North Paravoor taken cognizance of the offence under Section 138 of Negotiable Instruments Act, on the complaint filed by first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash all further proceedings in C.C.310/2004 contending that first respondent instituted O.S.54/2006 in respect of the very same claim and the civil court under Annexure-1 judgment dismissed the suit finding that the agreement for sale set up in the case is not believable and therefore the criminal case is to be quashed. 2. Learned counsel appearing for petitioner and learned counsel appearing for first respondent were heard. 3. Learned counsel appearing for first respondent submitted that first appeal is pending CRMC 778/09 2 against Annexure-1 judgment as R.F.A.485/2007 and when Annexure-1 judgment has not become final, based on the criminal case cannot be quashed. Learned counsel appearing for petitioner relying on the decision in Madhavan Nambiar v. Bharathan (1995 (1) KLT 591) argued that in such circumstances, criminal case is to be stayed till final disposal of the civil case. 4. On hearing the learned counsel, I find no reason to quash the criminal proceedings as sought for. If accepting Annexure-1 judgment the criminal case as sought for is to be quashed and in the first appeal the judgment is reversed, first respondent will be left with no remedy in the criminal case. Question considered in O.S.54/2006 is with regard to the liability under Ext.A1 agreement. Annexure-2 complaint does not disclose that the dishonoured cheque was issued in respect of the said agreement. Learned counsel appearing for petitioner submitted that it is in respect of the same transaction. That is a matter to be decided on the evidence in that case. If the case of the petitioner is that because of Annexure-1 judgment, case of first respondent is to be disbelieved, petitioner is at liberty to put forth CRMC 778/09 3 the argument in the criminal case. If case of the petitioner is that criminal case is to be stayed in view of the first appeal pending against Annexure-1 judgment, it is for the petitioner to seek an order of stay before the learned Magistrate. In any case the petition cannot be closed as sought for. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.