IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2098 of 2006()
1. MR. J. JOSE, S/O. THANKAYYAN NADAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. O.G. HARIRAJ, T.C.31/995 (2),
For Petitioner :SRI.M.SREEKUMAR
For Respondent :SRI.R.T.PRADEEP
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :13/01/2010
O R D E R
P.S.GOPINATHAN, J.
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Crl.M.C.No.2098 of 2006.
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Dated this the 13th day of January, 2010.
O R D E R
The petitioner is the accused in ST.No.884/2005 on the
file of the Judicial Magistrate of the First Class-II,
Thiruvananthapuram. The second respondent herein filed a
complaint, copy of which is marked as Annexure-A, against
the petitioner alleging offence under Section 138 of the
Negotiable Instruments Act with a plea that in discharge of
an existing liability, the petitioner issued four cheques.
When presented, the cheques were returned with the
endorsement `payment stopped by the drawer’. Though a
lawyer notice demanding discharge of liability was caused
the liability was not cleared, but a reply was sent.
2. According to the petitioner, there is no liability
subsisting between the petitioner and the second
respondent and that the cheques in dispute were issued
Crl.M.C.No.2098 of 2006.
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only to compromise certain cases pending between the
second respondent and the brother-in-law of the petitioner.
Annexure-C is the compromise. Annexure-D is the common
judgment in pursuance of Annexure-C. In acknowledgment
of the cheques, Annexure-B receipt was also issued.
According to the learned counsel, a reading of Annexure-B
would show that there was no outstanding liability and
hence no offence under Sec.138 of the Negotiable
Instruments Act is made out.
3. In contra, the learned counsel for the second
respondent would contend that there are sufficient
averments in the complaint regarding the existence of the
liability and that the second respondent is not admitting
Annexure-B receipt and that with the materials on record
there are sufficient averments to prosecute the petitioner
under Sec.138 of the Negotiable Instruments Act and that
the request to quash the proceedings in exercise of the
powers vested on this Court under Sec.482 of the Criminal
Crl.M.C.No.2098 of 2006.
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Procedure Code is without any merit.
4. Having heard either side and perusing the
records, I find that in the complaint there is specific
averment that the cheques in dispute were issued in
discharge of an existing debt. Whether the cheques were
issued in discharge of a debt or not is a matter for evidence.
Whether Annexure-B receipt was executed or not is also a
matter of evidence. These matters cannot be decided in a
proceeding under Sec.482 of the Code of Criminal
Procedure. I find little material to quash Annexure-A
complaint. This Criminal Miscellaneous Case is devoid of
any merit. Accordingly it is dismissed without prejudice to
the right of the petitioner to defend the proceedings before
the trial court.
P.S.GOPINATHAN, JUDGE
KVS/-