Binu Keloth v Hema Chandran Mohanan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** ## **Crl.MC.No. 6051 of 2018** **AGAINST THE ORDER/JUDGMENT IN ST 858/2016 of J.M.F.C.-II, ALUVA** ## **PETITIONER:** **BINU KELOTH AGED 44 YEARS S/O.RAMAKRISHNAN NAIR I-1, GALAXY VESTA, P.J.ANTONY ROAD, EDAPPALLY P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN SMT.LEKSHMI SWAMINATHAN SRI.M.V.DAS SRI.S.JAYAKUMAR** ## **RESPONDENTS:** **1 HEMA CHANDRAN MOHANAN 48/1978G, PERUMPOTTE ROAD, RAMAKODAM LANE, ELAMAKKARA, KOCHI - 682 026 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.E. C. BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 6051 of 2018 -2- ## O R D E R The petitioner is the accused in S.T. No.858 of 2016 on the files of the court below. 2. The first respondent herein filed Annexure-A1 complaint against the petitioner before the court below alleging offence under Section 138 of the Negotiable Instruments Act. 3. The petitioner has filed this Crl.M.C. praying for quashing Annexure-A1 complaint and further proceedings against the petitioner in the above said case. 4. Heard. 5. The learned counsel for the petitioner has argued that since the petitioner was abroad from 2014 onwards, the petitioner was not available in India to issue the cheque on Crl.MC.No. 6051 of 2018 -3- 5.1.2016 as alleged in Annexure - A1 complaint and in the said circumstances, Annexure-A1 complaint and further proceedings against the petitioner cannot be sustained. 6. I have gone through Annexure-A1 complaint. Annexure-A1 complaint does not mention as to whether the cheque was issued in India or abroad. It is settled law that the cause of action for a prosecution under Section 138 of the N.I. Act does not depend upon the place of issuance of the cheque. Therefore, the place at which the cheque was issued and whether the petitioner was available at that place for issuing the cheque are matters for evidence. Since many seals in the copy of the passport produced by the petitioner were not clear and readable, this court directed the petitioner to produce the original passport or the copy of the passport attested by the Embassy of India. However, Crl.MC.No. 6051 of 2018 -4- a true copy of the passport, signed by the learned Advocate, alone was produced by the petitioner. It is not discernible as to how the lawyer could attest the passport and produce it as Annexure-7, if the petitioner was not available in India during the last week. If he was available in India, it is not discernible as to why the petitioner was reluctant to produce the original passport before this court for the perusal of this court. It is also not discernible as to why the copy of the passport attested by the Embassy could not be produced before this court as required by this court if the petitioner was abroad during the last week. The contention of the petitioner is that after leaving for UAE on 15.1.2015, the petitioner reached India only on 18.10.2017. Annexure7, copy of the relevant pages of the passport produced by the petitioner, would show that there was an exit from UAE Crl.MC.No. 6051 of 2018 -5- on 4.2.2015. Annexure - 7 would further show that there is a seal of Chennai Air Port on 8.7.2017. In view of the above reasons, it cannot be said, without recording the evidence, that the contention of the complainant with regard to the issuance of cheque is not correct. In view of the above reasons, the argument advanced before me by the learned counsel for the petitioner cannot be accepted. 7. The learned counsel for the petitioner has further argued that the demand notice was returned with the endorsement 'addressee left India' and in the said circumstances, there was no demand notice and consequently, Annexure-A1 complaint cannot be sustained. The learned counsel relied on the decision of this court in Usman M v. M.P. Muhammed Ali and another [2017 (4) KHC 565] to support his argument. In Usman (supra), the Crl.MC.No. 6051 of 2018 conviction and sentence passed by the trial court, as affirmed by the appellate Court, had been the subjectmatter of consideration by the court. The evidence showed that the notice was not served on the accused therein, as the accused was not in India at the time when the notice was allegedly issued. In this case, the trial is not over. Whether the petitioner was actually in India or whether he had left India to evade the notice, is a matter for evidence and hence, the same cannot be decided in this Crl.M.C. filed under Section 482 Cr.P.C. The Apex Court in H.M.T.Watches Ltd. v. M.A. Abida and another [2015 (2) KHC 264] held that the High Court should not exercise the jurisdiction under Section 482 Cr.P.C. to quash the complaint taking factual defences and the disputed question of facts can be decided only in the trial. Since the service Crl.MC.No. 6051 of 2018 -7- of notice on the petitioner is a question of fact, which can be decided only after recording the evidence, the said factual defence cannot be taken into consideration to quash the criminal complaint at the threshold. No other argument has been advanced before me by the learned counsel for the petitioner to quash Annexure-A1 complaint. 8. I have gone through Annexure-A1 complaint and I am satisfied that Annexure-A1 complaint contains ingredients to _primafacie_ constitute the offence under Section 138 of the N.I. Act. In the said circumstances, I find no reason to quash Annexure-A1 complaint as sought for. In the result, this Crl.M.C. stands dismissed. Dated this the 24[th] day of September 2018. ## **sd B.SUDHEENDRA KUMAR, JUDGE** _dl/_ Crl.MC.No. 6051 of 2018 -8- ## **APPENDIX** ## **PETITIONERS/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT IN ST NO.858/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, ALUVA DATED 29/2/2016 ANNEXURE A2 TRUE COPY OF CHEQUE ALLEGED TO BE ISSUED BY THE ACCUSED DRAWN ON FEDERAL BANK BEARING THE DATED 5/1/2016 ANNEXURE A3 TRUE COPY OF LAWYERS NOTICE DATED 22/1/2016 ISSUED TO THE ACCUSED TO HIS THARAWAD HOUSE VIZ RAGA BINDU, KATHIROOR.P.O., THALASSERY ANNEXURE A4 TRUE COPY OF PASSPORT OF THE ACCUSED.** **RESPONDENTS EXHIBITS : NIL** **// True copy // PA to Judge**