This is an application filed by the petitioner who is the accused in CC.No.1701 of 2013 on the files of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram to quash the proceedings under section 482 of Code of Criminal Procedure.
2. The case of the petitioner in the petition that he was a sole accused in CC.No.1701 of 2013 pending before Additional Chief Judicial Magistrate Court, Thiruvananthapuram which was taken on file on the basis of private complaint filed by the second respondent alleging offence under section 138 of the Negotiable Instruments Act (herein after called the ‘Áct’). The case of the complainant in the complaint was that on 7.5.09, the petitioner borrowed `.5 lakhs (Rupees Five lakhs only) and issued the disputed cheque No.568195 dated 12.11.2012 of State Bank of Travancore, Thirumala branch to him, in discharge of his liability which when was presented was dishonoured for the reasons funds in sufficient and in spite of notice issued, the amount was not paid. So the petitioner had committed the offence punishable under section 138 of the Negotiable Instruments Act. The case of the petitioner in the Crl.M.C.No.3175 of 2014 2 petition is that the second respondent is a money lender and he borrowed `.10,000/- from the second respondent in the year 2009 for interest and at the time when the amount was borrowed, he obtained the disputed cheque as a blank signed cheque and though the amount was paid, the cheque was not returned and misusing the cheque, the present complaint has been filed. According to the petitioner, he had not executed the cheque and the offence under section 138 of the Act is not attracted. So the petitioner has no other remedy except to approach this Court seeking the following reliefs:-
to quash Annexure-A1 Private complaint, Proceedings in CC.No.1701/13 pending before the Honourable Additional Chief Judicial Magistrate Court, Thiruvananthapuram.
3. Considering the nature of allegations made in the petition, this Court felt that the petition can be disposed of at the admission stage itself after hearing counsel for the petitioner and the learned Public Prosecutor and dispensing with notice to the second respondent.
4. The counsel for the petitioner submitted that there was some money transaction during 2009 between the petitioner and the second respondent and at that time, he obtained a blank signed cheque and though he paid the amount, he had not returned the cheque and subsequently misusing the cheque, he filed the Crl.M.C.No.3175 of 2014 3 present complaint under section 138 of the Negotiable Instruments Act and in the cheque the date was shown as 7.5.2009. On going through the allegations, the case of the petitioner is that the cheque was obtained in the year 2009 which has been misused or which was given as blank signed cheque etc are matter to be considered on the basis of evidence and it cannot be possible for this Court to go into those aspects by considering the application for quashing under section 482 of Code of Criminal Procedure. So this court feels that it is not a fit case to invoke the power under section 482 of Code of Criminal Procedure at this stage to quash the proceedings and the petitioner can adduce evidence before the concerned court on these aspects and the matter has to be considered and decided on the basis of evidence. So under the circumstances, this court feels that it is not a fit case to invoke the power under section 482 of Code of Criminal Procedure to quash the proceedings and the petitioner is not entitle to get the relief claimed in the petition.
So the petition is dismissed with liberty for the petitioner to raise all his contentions before the concerned court by adducing proper evidence.
Office is directed to communicate this order to the concerned court immediately.
R.AV K. RAMAKRISHNAN, JUDGE