Lizzy Babu vs Ing Vysaya Bank Ltd on 3 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 226 of 2009()


1. LIZZY BABU, W/O.BABU, AGED 39 YEARS,
                      ...  Petitioner

                        Vs



1. ING VYSAYA BANK LTD,RETAIL BANKING DIVIS
                       ...       Respondent

2. STATE OF KERALA, REP. BY PUBLIC

                For Petitioner  :SRI.S.RAJEEV

                For Respondent  :SRI.P.T.JOSE

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :03/06/2009

 O R D E R
             M.SASIDHARAN NAMBIAR, J.
               ==================
               Crl.M.C. No. 226 of 2009-E
               ==================
           Dated this the 3rd day of June, 2009.

                       O R D E R

Petitioner is the accused and 2nd respondent the

complainant in S.T.No.271/2008 pending before Judicial

First Class Magistrate Court-IV, Ernakulam. The

Magistrate took cognizance of the offence under Section

138 of Negotiable Instruments Act on Annexure 1

complaint. As per the allegation in the complaint, towards

repayment of the loan of Rs.7,50,000/- obtained, petitioner

issued cheque Nos.268817, 268818 and 268819 drawn on

ING Vysya Bank Ltd., Kottayam and when cheques were

presented they were dishonoured for want of sufficient

funds and inspite of notice the amount was not paid and

petitioner committed offence under Section 138 of the

Negotiable Instruments Act. This petition is filed under

Section 482 of Code of Criminal Procedure to quash

Annexure 1 complaint and the proceedings taken by the

Crl.M.C.No.226/2009-E
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Magistrate contending that there is no allegation in the

complaint that the dishonoured cheques were issued in the

account maintained by the petitioner. It was contended

that those cheques were issued from the account

maintained by the husband of the petitioner as evidenced by

Annexure 2 statement of deposit of account and so no

offence under Section 138 is attracted.

2. Learned Counsel appearing for petitioner and

learned Counsel appearing for second respondent were

heard.

3. Learned Counsel appearing for second

respondent submitted that second respondent was partly

examined and it is posted for cross-examination and at this

stage petitioner is entitled to cross-examine the witness and

to establish that no offence is made out and the petition

under Section 482 of Code of Criminal Procedure is not

maintainable. Learned Counsel for the petitioner rightly

pointed out that an offence under Section 138 would lie only

Crl.M.C.No.226/2009-E
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if the dishonoured cheques were issued in the account

maintained by the petitioner and if the complaint does not

disclose that the account is maintained by the petitioner

and if the materials establish that the account is not

maintained by the petitioner, no offence under Section 138

of Negotiable Instruments Act will lie and if so the

complaint can only be quashed.

4. To attract an offence under Section 138 of the

Negotiable Instruments Act it is mandatory that the cheque

should be issued by the accused in the account maintained

by him. Annexure 1 complaint though contain the averment

that petitioner issued the dishonoured cheques, does not

show that the account was maintained by the petitioner.

Annexure 2 statement of deposit of account establish that

Account No.507010062789 is the account maintained by

Babu P.Kuriakose and not his wife, the petitioner.

Annexure 4(a) to Annexure 4(c), certified copy of

dishonoured cheques, establish that all the cheques were

Crl.M.C.No.226/2009-E
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issued from Account No.507010062789. Therefore

Annexure 4 copies of dishonoured cheques with Annexure 2

statement of deposit of account issued by the Bank establish

that the dishonoured cheques were issued in the account

maintained by Babu P.Kuriakose and not by the petitioner.

Therefore this is not only a case where the complaint does

not contain necessary pleadings that the dishonoured

cheques were issued in the account maintained by the

petitioner/accused, but materials establish that the cheques

were issued not from the account maintained by petitioner.

If that be so, an offence under Section 138 of Negotiable

Instruments Act is not attracted. The question whether any

other offence was committed or not is not to be decided in

this petition. Crl.M.C. is allowed. Annexure A1 complaint

and S.T.No.271/2008 taken cognizance on the complaint are

quashed.

M.SASIDHARAN NAMBIAR
JUDGE

dkr