IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3509 of 2009()
1. V.L. LOUIS,
... Petitioner
Vs
1. RAVEENDRAN PILLAI,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/11/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.3509 of 2009
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ORDER
Petitioner is the accused in S.T.No.217/2009 on
the file of Chief Judicial Magistrate’s Court,
Kollam, taken cognizance for the offence under
Section 138 of Negotiable Instruments Act on
Annexure-A1 complaint filed by the first
respondent. This petition is filed under Section
482 of Code of Criminal Procedure to quash
Annexure-A1 complaint and the cognizance taken
contending that continuation of the proceedings is
only an abuse of process of the court, as on the
complaint, there is no likelihood of a successful
prosecution.
2. Learned counsel appearing for the petitioner
was heard.
3. Argument of the learned counsel is that in
Annexure-A2 notice sent under Section 138(b) of
Negotiable Instruments Act, first respondent did
CRMC 3509/09 2
not demand the respective amounts due under the two
cheques and instead, demanded the total amount
covered by the two cheques and it is not sufficient
and hence, the proceedings is to be quashed.
Learned counsel also argued that the dishonoured
cheque, involved in the case, was forcibly taken
from the petitioner, who is a practising Lawyer and
petitioner had preferred a complaint before the
police and in such circumstances, the cheque was
not issued towards discharge of any legally
enforceable debt and therefore, the offence is not
attracted.
4. On hearing the learned counsel, I cannot
agree with the submission that complaint is to be
quashed on any of the grounds. Section 138(b) of
Negotiable Instruments Act provides for demanding
the amount covered by the dishonoured cheque. It
cannot be said that by Annexure-A2, the amount
covered by the two cheques was not demanded for the
reason that only the total amount covered by the
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two cheques was demanded. The question whether
dishonoured cheque was taken from the petitioner by
the first respondent, who was allegedly working as
a Clerk of the petitioner is a matter for evidence
and based on the allegations in the petition, it
cannot be quashed. Petitioner is at liberty to
raise all these contentions before the learned
Magistrate. Learned counsel then submitted that
presence of the petitioner may be dispensed with at
the time of trial and petitioner may be permitted
to seek an order of discharge.
5. This Court had already observed in several
decisions that when an accused is being tried for
an offence under Section 138 of Negotiable
Instruments Act, personal presence of the accused
need not be insisted, except in cases, where
identity is an issue and a petition under Section
205 of Code of Criminal procedure is to be
liberally allowed. I find it not necessary to make
any other observation. If the case is being tried
CRMC 3509/09 4
as a warrant trial case, petitioner is entitled to
seek an order of discharge by filing a petition
under Section 205 of Code of Criminal Procedure and
in that case, learned Magistrate not to insist for
the personal presence of the petitioner.
Petition is disposed.
2nd November, 2009 (M.Sasidharan Nambiar, Judge)
tkv