Kerala High Court
Gigi Raju V.P vs State Of Kerala on 28 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
CRL.MC NO. 3235 OF 2021
AGAINST THE ORDER/JUDGMENT IN ST NO.1/2021 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -VI, THIRUVANANTHAPURAM
PETITIONER/ACCUSED :-
GIGI RAJU V.P.
AGED 36 YEARS
D/O. R.V RAJU, PARTNER, IFUTURZ WIRELESS TECHNOLOGIES,
C/O. ASIANET SATELLITE COMMUNICATIONS, LTD., 3RD FLOOR,
KARIMPANAL ARCADE, EAST FORT, THIRUVANANTHAPURAM,
RESIDING A T CHAITRAM, K.B. NAGAR, ERAVIPURAM,
KOLLAM 691 011.
BY ADVS.
P.B.SAHASRANAMAN
T.S.HARIKUMAR
RESPONDENTS/STATE & THE COMPLAINANT :-
1 STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE
SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA , ERNAKULAM 682 031.
2 KURIAN BABY KUTTY,
AGED 35 YEARS
S/O. BABY KUTTY, NO. 317, PRASANTH NAGAR, ULLOOR,
MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 011,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.K.
AYYAPPAN, AGED 70 YEARS , S/O. KUMARU ACHARI, RESIDING
A PRIYA, MRA-20 PONGUMOOD, MEDICAL COLLEGE P.O.
THIRUVANANTHAPURAM 695 011.
By SRI V S SREEJITH, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.06.2022, ALONG WITH Crl.MC.3246/2021, 3253/2021, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3235, 3246 & 3253 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
CRL.MC NO. 3246 OF 2021
AGAINST THE ORDER/JUDGMENT IN ST 1/2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -VI, THIRUVANANTHAPURAM
PETITIONER/5TH ACCUSED :-
GIGI RAJU V.P.
AGED 36 YEARS
D/O.R.V.RAJU, PARTNER, IFUTURZ WIRELESS
TECHNOLOGIES, C/O.ASIANET SATELLITE COMMUNICATIONS
LTD., 3RD FLOOR, KARIMPANAL ARCADE, EAST FORT,
THIRUVANANTHAPURAM, RESIDING AT CHAITRAM,
K.B.NAGAR, ERAVIPURAM,
KOLLAM - 691 011.
BY ADVS.
P.B.SAHASRANAMAN
T.S.HARIKUMAR
RESPONDENTS/STATE & THE COMPLAINANT :-
1 STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 KURIAN BABY KUTTY
AGED 35 YEARS
S/O.BABY KUTTY, NO.317, PRASATH NAGAR, ULLOOR,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
T.K.AYYAPPAN, AGED 70 YEARS, S/O.KUMARU ACHARI,
RESIDING AT PRIYA, MRA-20, PONGUMOOD,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.
BY SRI.RENJITY GEORGE, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.06.2022, ALONG WITH Crl.MC.3235/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3235, 3246 & 3253 OF 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
CRL.MC NO. 3253 OF 2021
AGAINST THE ORDER/JUDGMENT IN ST 2/2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -VI, THIRUVANANTHAPURAM
PETITIONER/5TH ACCCUSED :-
GIGI RAJU V.P.
AGED 36 YEARS
D/O.R.V.RAJU, PARTNER, IFUTURZ WIRELESS
TECHNOLOGIES, C/O.ASSISTANT SATELLITE
COMMUNICATIONS LTD., 3RD FLOOR, KARIMPANAL ARCADE,
EAST FORT, THIRUVANANTHAPURAM, RESIDING AT
CHAITRAM, K.B.NAGAR, ERAVIPURAM,
KOLLAM - 691 011.
BY ADVS.
P.B.SAHASRANAMAN
T.S.HARIKUMAR
RESPONDENTS/STATE & THE COMPLAINANT :-
1 STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 KURIAN BABY KUTTY
AGED 35 YEARS
S/O.BABY KUTTY, NO.317, PRASATH NAGAR, ULLOOR,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695
011,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
T.K.AYYAPPAN, AGED 70 YEARS, S/O.KUMARU ACHARI,
RESIDING AT PRIYA, MRA-20, PONGUMOOD,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695
011.
BY SRI.V.S.SREEJITH, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.06.2022, ALONG WITH Crl.MC.3235/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3235, 3246 & 3253 OF 2021
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ORDER
Dated this the 28th day of June, 2022
These petitions are filed by the petitioner/5 th accused under
Section 482 of the Code of Criminal Procedure, 1973 (for short
'Cr.P.C') seeking to quash a complaint lodged by the second
respondent in each cases under Section 142 of the Negotiable
Instruments Act, 1881 (for short 'the N.I Act'), copies of which are
produced alongwith the respective criminal M.Cs as Annexure-A1
and further proceedings initiated by Judicial First Class Magistrate
Court-VI, Thiruvananthapuram (for short 'the court below') based on
the complaints filed and taken on it's file respectively as S.T.No.1 of
2021, S.T.No.1 of 2020 and S.T.No.2 of 2020.
2. The second respondent has filed complaint under Section
142 N.I Act alleging that the petitioner in the respective Crl.M.Cs
have committed offence punishable under Section 138 N.I Act. The
complainant as well as the petitioner in each case are partners of the
first accused. The averment of the complainant was that he got retired
CRL.MC NO. 3235, 3246 & 3253 OF 2021
from the partnership firm and a deed of retirement was executed. The
continuing partners purchased the shares of the retiring partners.
According to him, the shares of him have been purchased by the
respective accused and 12 cheques have been issued towards price of
the shares. The cheques on presentation before the bank for
encashment were bounced and thereupon the prosecutions in question
have been launched before the court concerned.
3. Sri.T.S.Harikumar, the learned counsel for the petitioner
has contended that in Annexure-A1 complaint, there is no averment
that the petitioner was in charge of and responsible for the affairs of
the firm. It is further submitted by him that all accused except the
petitioner have faced trial before the court below and the prosecution
culminated in their acquittal. It is submitted by the learned counsel
that the very same petitioner has approached this Court by filing a
Crl.M.C seeking to quash similar complaint and Annexure-A4
judgment was passed in his favour, copy of which is produced
alongwith as Annexure-A4.
4. This Court has gone into Annexures-A3 and A4 and
convinced that the parties involved in the prosecutions are common.
CRL.MC NO. 3235, 3246 & 3253 OF 2021
The complainant failed to produce the deed evidencing his retirement
from the partnership allegedly executed by him on 27.05.2006 or the
public notice envisaged under the Partnership Act. In the above
circumstances that the trial court had found that the complainant
failed to establish that Ext.P3 cheque was issued towards discharge
of a legally enforceable debt due to him. Accordingly accused Nos.1
to 4 and 6 who faced trial were found not guilty for the offence under
Section 138 NI Act and accordingly acquitted.
5. Annexure-A4 is the judgment of this Court in Crl.M.C
No.1699/2017 filed by the 5th accused in C.C.No.141/2007 pending
of the files of Additional Chief Judicial Magistrate Court,
Thiruvanathapuram instituted on the basis of a complaint filed by the
2nd respondent therein. The allegations raised in the complaint
formed basis for registration of C.C.No.141/2007 and the
complainants are common as in the petition on hand. The alleged
transaction which caused the issuance of the cheque involved in the
prosecution was also one and the same. The cheque number alone is
different. The proceedings were quashed by order passed by this
Court on 11.04.2017 (A4) stating that in the complaint produced as
CRL.MC NO. 3235, 3246 & 3253 OF 2021
Annexure A1 an allegation that accused No.5 was in charge of and
responsible for the affairs of the firm as a partner was missing. The
learned counsel for the petitioner has submitted that appeal has not
been preferred from Annexure-A3 order till date.
7. This Court has also ascertained from the office and
obtained the information in conformity with what is submitted by the
learned counsel with reference to Annexure-A3. No materials has
been placed before this Court to show that challenge against
Annexure-A4 order quashing the complaint against accused Nos.1 to
4 and 6 was raised and under consideration of the Apex Court.
8. The copy of the complaint in S.T.No,65/2009 is produced
as Annexure A1. On reading the averments in Annexure A1, this
Court is convinced that an allegation of the nature referred to supra
was lacking in it. That being the context, undoubtedly the petitioner
herein is entitled to get the benefit of Annexures-A3 and A4. In that
context, Crl.M.Cs are deserve to be allowed.
In the result, Crl.M.C Nos.3235 of 2021, 3246 of 2021 and
3253 of 2021 are allowed. Annexure A1 complaints and S.T.No.1 of
2021, S.T.No.1 of 2020 and S.T.No.2 of 2020 registered on the basis
CRL.MC NO. 3235, 3246 & 3253 OF 2021
of those and pending on the files of the Judicial First Class
Magistrate Court-VI, Thiruvananthapuram are quashed.
Sd/-
MARY JOSEPH
JUDGE
SMA
CRL.MC NO. 3235, 3246 & 3253 OF 2021
APPENDIX OF CRL.MC 3246/2021
PETITIONER ANNEXURES :-
Annexure A1 TRUE PHOTOSTAT COPY OF THE COMPLAINT
IN C.C.NO.1489 OF 2007 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-VI,
THIRUVANANTHAPURAM, DATED 22/08/2007.
Annexure A2 TRUE PHOTOSTAT COPY OF THE
REGISTRATION CERTIFICATE OF ACCUSED A1
FIRM, DATED 21/06/2014.
Annexure A3 TRUE CERTIFIED COPY OF THE JUDGMENT IN
C.C.NO.1489 OF 2007 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-VI,
THIRUVANANTHAPURAM, DATED 14/12/2020.
Annexure A4 TRUE PHOTOSTAT COPY OF THE ORDER OF
THIS COURT IN CRL.M.C.NO.1699 OF 2017,
DATED 11/04/2017.
CRL.MC NO. 3235, 3246 & 3253 OF 2021
APPENDIX OF CRL.MC 3253/2021
PETITIONER ANNEXURES :-
Annexure A1 TRUE PHOTOSTAT COPY OF THE COMPLAINT
IN S.T.NO.65 OF 2009 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT -VI,
THIRUVANANTHAPURAM DATED 24/08/2006.
Annexure A2 TRUE PHOTOSTAT COPY OF THE
REGISTRATION CERTIFICATE OF ACCUSED A1
FIRM, DATED 21/06/2014.
Annexure A3 TRUE CERTIFIED COPY OF THE JUDGMENT IN
S.T.NO.65 OF 2009 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-VI,
THIRUVANANTHAPURAM, DATED 14/12/2020.
Annexure A4 TRUE PHOTOSTAT COPY OF THE ORDER OF
THIS COURT IN CRL.M.C.NO.1699 OF 2017,
DATED 11/04/2017.
CRL.MC NO. 3235, 3246 & 3253 OF 2021
APPENDIX OF CRL.MC 3235/2021
PETITIONER ANNEXURES :-
Annexure A1 TRUE PHOTOSTAT COPY OF THE COMPLAINT
IN S.T. NO. 96 OF 2009 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT VI,
THIRUVANANTHAPURAM DATED 06.10.2006.
Annexure A2 TRUE PHOTOSTAT COPY OF THE
REGISTRATION CERTIFICATE OF ACCUSED AI
FIR, DATED 21.06.2014.
Annexure A3 TRUE CERTIFIED COPY OF THE JUDGMENT IN
S.T. NO. 96 OF 2009 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT -IV,
THIRUVANANTHAPURAM DATED 11.01.2021.
Annexure A4 TRUE PHOTOSTAT COPY OF THE ORDER OF
THIS COURT IN CRL.M.C. NO. 1699 OF
2017, DATED 11.04.2017 HIGH COURT OF
KERALA.
