IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 22230 of 2008(U) -------------------------- ST.1924/2006 of J.M.F.C.-I,KOZHIKODE OS.76/2006 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: ------------ MANOJKUMAR, S/O.VASUDEVAN MOOSATH, BUSINESS, THAYATTU PARAMBIL, VELLANNOOR AMSOM, CHULLOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: ------------- RAJI THOMAS, S/O.K.J.THOMAS, A6, GIRI NAGAR, VENGERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.C.P.MOHAMMED NIAS FOR R1 SRI.SRINATH GIRISH FOR R1 SMT.M.LISHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF COMPLAINT IN S.T. 1924/06 BEFORE THE JFCM-I, KOZHIKODE. EXT.P2 TRUE COPY OF CHIEF AFFIDAVIT FILED BY THE 1ST RESPONDENT IN S.T.1924/06 ON THE FILE OF THE JFMC-I, KOZHIKODE. EXT.P3 TRUE COPY OF STATEMENT SUBMITTED BY THE COUNSEL FOR THE PLAINTIFF BEFORE THE SUB COURT, KOZHIKODE IN O.S.75/06. EXT.P4 TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER BEFORE THE SUB COURT, KOZHIKODE AS CMP 380/08 IN O.S. 75/06. EXT.P5 TRUE COPY OF COMPLAINT SUBMITTED BY THE PETITIONER DT.9.5.08 BEFORE THE JFMC IV, KOZHIKODE. /TRUE COPY/ R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 22230 of 2008 U - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2008 JUDGMENT The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. Cognizance was taken as early as in 2006. According to the complainant, the cheque was issued for the discharge of a legally enforceable debt/liability when O.S.No. 75 of 2006, which was pending before the Iind Addl. Subordinate Judge, was disposed of on consent. 2. Long after cognizance was taken, the petitioner has initiated proceedings before the learned Subordinate Judge raising a grievance that the acknowledgment shown on the statement filed requesting the court to dismiss the application is not genuine. The subordinate Court is seized of the matter on the basis of the affidavit dt.16.7.2008 and it is submitted that some proceedings are pending before the said court. In the meantime this old prosecution under Section 138 of the N.I. Act is likely to be taken up for trial. The petitioner has come to this Court with W.P.C.No. 22230 of 2008 2 this petition under Article 227 of the Constitution with a prayer that the cross examination of the complainant may be deferred for a period of two months. 3. The respondent has entered appearance. The learned counsel for the respondent submits that the attempt of the petitioner is to some how drag on the proceedings. Want of bonafides is evident from the fact that though S.T.1924 of 2006 was filed as early as in 2006 the application before the Subordinate Judge was filed only in 2008 on the eve of the matter being taken up for trial in the S.138 prosecution. 4. Having considered all the relevant circumstances, I am not persuaded to agree that any direction need be issued under Article 227 of the Constitution. It is for the petitioner to raise all his contentions in defence before the learned Magistrate in the course of the trial. His contention that the cheque was not issued by him to the complainant when O.S. 75 of 2006 was dismissed as not pressed can certainly be urged by him and substantiated before the learned Magistrate. I am not satisfied that it is necessary to wait for completion of the proceedings W.P.C.No. 22230 of 2008 3 before the Subordinate Judge before the prosecution under Section 138 is taken up for trial. 5. This writ petition is accordingly dismissed. (R. BASANT) Judge tm