LIZZY BABU Vs. ING VYSAYA BANK LTD

JUDGEMENT

(1.) Petitioner is the accused and 2nd respondent the complainant in S.T.No.271/2008 pending before Judicial First Class Magistrate Court-IV, Ernakulam. The Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act on Annexure 1 complaint. As per the allegation in the complaint, towards repayment of the loan of Rs.7,50,000/- obtained, petitioner issued cheque Nos.268817, 268818 and 268819 drawn on ING Vysya Bank Ltd., Kottayam and when cheques were presented they were dishonoured for want of sufficient funds and in spite of notice the amount was not paid and petitioner committed offence under Section 138 of the Negotiable Instruments Act. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure 1 complaint and the proceedings taken by the Magistrate contending that there is no allegation in the complaint that the dishonoured cheques were issued in the account maintained by the petitioner. It was contended that those cheques were issued from the account maintained by the husband of the petitioner as evidenced by Annexure 2 statement of deposit of account and so no offence under Section 138 is attracted.

(2.) Learned Counsel appearing for petitioner and learned Counsel appearing for second respondent were heard.

(3.) Learned Counsel appearing for second respondent submitted that second respondent was partly examined and it is posted for cross - examination and at this stage petitioner is entitled to cross-examine the witness and to establish that no offence is made out and the petition under Section 482 of Code of Criminal Procedure is not maintainable. Learned Counsel for the petitioner rightly pointed out that an offence under Section 138 would lie only if the dishonoured cheques were issued in the account maintained by the petitioner and if the complaint does not disclose that the account is maintained by the petitioner and if the materials establish that the account is not maintained by the petitioner, no offence under Section 138 of Negotiable Instruments Act will lie and if so the complaint can only be quashed.