IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1296 of 2007()
1. IDICULLA VARGHESE,
... Petitioner
Vs
1. SHIBU P.MATHEW,THATTIL HOUSE,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :29/05/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No. 1296 of 2007
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Dated this the 29th day of May 2007
O R D E R
The petitioner faces indictment in a prosecution under
Section 138 of the Negotiable Instruments Act. He has not
entered appearance before the learned Magistrate. It is
submitted that he is permanently residing at Saudi Arabia and is
working there. A warrant of arrest issued by the learned
Magistrate is chasing him. The petitioner, in these
circumstances, has come to this court with a prayer that the
proceedings against him may be quashed.
2. What are the reasons? Two reasons are urged by the
learned counsel for the petitioner. That the cheque is drawn on
a cheque leaf issued to the petitioner by his bank is not disputed.
There is no specific contention raised that the signature in the
cheque is not that of the petitioner. The petitioner contends that
the prosecution is liable to be quashed for two reasons. Firstly,
it is contended that the cheque was not issued but was thieved
from the possession of the petitioner by the complainant when
Crl.M.C.No.1296/07 2
both of them were working at Saudi Arabia. That is a contention
on which this court cannot hazard an opinion on the basis of the
materials presently available and at this stage. That contention
will have to be established in the course of the trial.
3. Secondly and alternatively a contention is raised that
though the notice is shown addressed to the petitioner’s address
at Saudi Arabia, the acknowledgment produced will show that it
was issued to the Indian residential address of the accused. The
petitioner does not admit that that is his residential address. He
submits that it is the address of his father’s family residence
where his father occasionally goes. Be that as it may, that letter
is seen received by someone. It is for the petitioner to raise his
contention in the course of the trial that the notice of demand
had not been served on the petitioner and that it was not
correctly addressed to him. That contention again is one which
will have to be raised in the course of the trial and substantiated.
At this point of time, it may not be possible for this court to grant
any relief on the basis of the assertion that the said address is
not that of the petitioner.
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4. This Criminal Miscellaneous Case does, in these
circumstances, fails. The same is dismissed with the observation
that the petitioner shall be at liberty to raise all necessary and
relevant contentions before the learned Magistrate in the course
of the trial.
5. Finally, the learned counsel for the petitioner submits
that the petitioner wants to appear before the learned
Magistrate and seek bail. But he apprehends that his application
for bail may not be considered by the learned Magistrate on
merits, expeditiously and in accordance with law. He, therefore,
prays that the directions under Section 482 Cr.P.C. may be
issued to the learned Magistrate to release the petitioner on bail
when he appears and applies for bail.
6. 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 find absolutely no reason to assume
that the learned Magistrate would not consider the application
for bail to be filed by the petitioner on merits, in accordance with
law and expeditiously. Every court must do the same. No special
Crl.M.C.No.1296/07 4
or specific directions appear to be necessary. Sufficient general
directions have been issued in Alice George vs.Deputy
Superintendent of Police [2003(1)KLT 339].
7. In the result, this Criminal Miscellaneous Case is
dismissed but with the specific observation that if the petitioner
surrenders before the learned Magistrate and applies for bail,
after giving sufficient prior notice to the Prosecutor in charge of
the case, the learned Magistrate must proceed to pass
appropriate orders on merits, in accordance with law and
expeditiously – on the date of surrender itself.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007