IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 547 of 2007()
1. R.M.SAILESH KUMAR
... Petitioner
Vs
1. P.K.DINESH KUMAR
... Respondent
For Petitioner :SRI.WILSON URMESE
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :01/03/2007
O R D E R
R. BASANT, J.
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CRL.M.C.NO. 547 OF 2007
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Dated this the 1st day of March, 2007
ORDER
The petitioner is the accused in a prosecution under
Sec.138 of the N.I. Act. According to the respondent/
complainant, cheques were issued by the petitioner to the
complainant for the discharge of a liability due to the wife and
mother-in-law of the complainant. The cheques were
dishonoured. After allegedly observing the statutory time
table, the complainant had come to court. The petitioner has
appeared before the learned Magistrate. Subsequently, he
could not appear. Therefore, the learned Magistrate has now
issued a non-bailable warrant of arrest to procure the
presence of the petitioner.
2. The learned counsel for the petitioner has, in these
circumstances, come to this Court with this Crl.M.C. under
Sec.482 of the Cr.P.C. He contends that the proceedings are
liable to be quashed under Sec.482 of the Cr.P.C. Two
reasons are urged. First of all, it is contended that the
liability is to the wife and mother-in-law of the complainant
CRL.M.C.NO. 547 OF 2007 -: 2 :-
and not to the complainant. This is not a valid defence in law.
A cheque issued for the discharge of a liability not personally
between the drawer and the payee does also fall within the
sweep of Sec.138 of the N.I. Act. That the cheque was issued to
the complainant even admittedly only for the discharge of
liability to his wife and mother-in-law is therefore not a valid
reason in law which would justify the quashing of the complaint.
3. It is next contended that the cheque has been issued as
security and the same has been misused by the complainant. A
decision on that contention cannot obviously be given at this
stage in proceedings under Sec.482 of the Cr.P.C. That
contention must be raised and substantiated before the trial
court. Thirdly, it is contended that there has been discharge of
the liability. Annexure-B series vouchers are relied on. Even
going by the case of the petitioner, the entire liability has not
been discharged, even if Annexure-B were accepted in toto. The
plea of discharge cannot also, in these circumstances, be
accepted at this stage.
4. Finally, the learned counsel for the petitioner submits
that the petitioner is prepared to surrender before the learned
Magistrate now. But he apprehends that his application for
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regular bail may not be considered by the learned Magistrate on
merits in accordance with law and expeditiously. It is, in these
circumstances, that the petitioner has come to this Court for a
direction to the learned Magistrate to release him on bail when
he appears before the learned Magistrate.
5. I do not find any reason to quash the complaint. I do
not find any reason to issue any directions under Sec.482 of the
Cr.P.C. It is for the petitioner to appear before the learned
Magistrate and explain to the learned Magistrate the
circumstances under which he could not earlier appear before
the learned Magistrate. I have no reason to assume that the
learned Magistrate would not consider the petitioner’s
application for regular bail on merits in accordance with law and
expeditiously. No special or specific directions appear to be
necessary. Every court must do the same. Sufficient general
directions on this aspect have already been issued in the decision
reported in Alice George v. Deputy Superintendent of Police
(2003 (1) KLT 339).
6. In the result, this Crl.M.C. is dismissed; but with the
observation that if the petitioner surrenders before the learned
Magistrate and seeks bail after giving sufficient prior notice to
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the Prosecutor in charge of the case, the learned Magistrate
must proceed to pass appropriate orders on merits and
expeditiously – on the date of surrender itself, unless compelling
and exceptional reasons are there.
Sd/-
(R. BASANT, JUDGE)
HO
Nan/
//true copy//
P.S. to Judge