C M ABDUL SALAM Vs. STATE

JUDGEMENT

(1.) PETITIONER is the first accused in Crime No.326 of 2002 of Kunnathunadu Police Station and C.C.No.465 of 2003 of the court of learned Judicial First Class Magistrate, Kolenchery for offences punishable under Sections 420, 465, 467, 468 and 120B read with Section 34 of the Indian Penal Code. Case was registered on Annexure-E, private complaint filed by the third respondent. Initially he had filed a complaint against the second accused, brother of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. That case was withdrawn and Annexure-E, complaint was preferred. In Annexure-E, complaint respondent No.3 alleged that petitioner and other accused conspired together and to make unlawful gain to them and unlawful loss to him, the second accused signed the cheque leaf issued in the account maintained by petitioner and that the said cheque was dishonoured. In paragraph 7 of Annexure-E, complaint it is stated that the cheque leaf given to the petitioner from the drawee bank was given (by the petitioner) to the second accused who signed the cheque and issued the same to respondent No.3. Learned counsel submits that petitioner is abroad from 1990 onwards and produced certain documents to show that even during February, 1997 when the alleged transaction occurred petitioner was abroad. PETITIONER seeks to quash proceeding against him. I have heard learned counsel for petitioner, respondent No.3 and the learned Public Prosecutor.

(2.) IT appears that there is no dispute between the parties that the cheque allegedly issued to respondent No.3 was drawn on the account maintained by petitioner and the cheque was dishonoured for insufficiency of funds. According to the petitioner he was abroad during the relevant time. But, going through paragraph 7 of Annexure-E, complaint I do not find any specific allegation that on 20.02.2997 when the alleged transaction took place petitioner was present and in his presence the cheque was issued. Allegation against petitioner is criminal conspiracy. IT is for the trial court to decide how the cheque leaf belonging to the petitioner happened to be in the custody of his brother, the second accused. Having regard to the allegations made I do not consider that this Court could exercise power under Section 482 of the Code of Criminal Procedure and quash the proceeding against petitioner.