Kerala High Court
Asharaf. K.M.P vs S.N. Agencies on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
1944
CRL.MC NO. 4340 OF 2022
CC 1442/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
VADAKARA
PETITIONER/2ND ACCUSED:
ASHARAF. K.M.P
AGED 58 YEARS
S/O MOOSA HAJI, GULZAR,
KANNOOKKARA, ONCHIYAM VILLAGE,
P.O. MADAPPALLY COLLEGE,
VATAKARA TALUK,
KOZHIKODE DISTRICT- 673102
BY ADVS.
U.K.DEVIDAS
K.K.ANILRAJ
RESPONDENTS/COMPLAINANT & STATE :
1 S.N. AGENCIES
SINOSIOR COMPLEX,
MARKET ROAD, VATAKARA,
A PARTNERSHIP FIRM,
REPRESENTED BY ITS MANAGING PARTNER,
PIN - 673101
2 BREEZE TRADING COMPANY,
A PARTNERSHIP FIRM,
PERINGALAM,THALASSERY,
KANNUR DISTRICT-670101
REP.BY ITS MANAGING PARTNER.
3 AYAMOTTI
AGED 72 YEARS
S/O. UMMAR MOOPPAN, NOUZAD MANZIL,
ZAIDAR PALLI, THALASSERY,
KANNUR DISTRICT, PIN - 670101
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4 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682031
BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
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A.BADHARUDEEN, J.
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Crl.M.C.No.4340 of 2022
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Dated this the 11th day of January, 2023
ORDER
This is a petition filed under Section 482 of the
Code of Criminal Procedure to quash all further proceedings
in C.C.No.1442 of 2015 on the file of the Judicial First Class
Magistrate Court-I, Vadakara.
2. Although notice served upon the first
respondent, no appearance.
3. A report was called for from the Magistrate
in relation to the proceedings of the case. As per letter
dated 01.12.2022, the Judicial First Class Magistrate Court-
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I, Vadakara reported as under:
In obedience to the above, I am submitting
herewith the details regarding the reasons for non
disposal of CC 1442/2015 on the file of this court.
CC.1442/2015 is a complaint case filed by
one C H Surendran on behalf of S N Agencies,
Vadakara u/s 138 of of NI Act. The case was
forwarded to this court from the Court of Judicial
First Class Magistrate, Thalassery on 04.12.2015.
There are three accused in this case and the first
accused is the firm represented by accused No.2.
Despite repeated process and coercive steps,
accused not appeared before this court and hence
the Hon'ble Chief Judicial Magistrate was
addressed for getting sanction to transfer the case
to LP register. Meanwhile, on 22.12.2017 accused
Nos.1 and 2 surrendered before this court and
they were enlarged on bail. On 30.12.2017 it was
submitted before this court by the counsel for
complainant that the complainant was no more.
On 29.01.2018 petition was filed by the partner of
the S N Agencies to implead him as the
complainant in this case. Petition was allowed and
one Nanu S/o Kelappan was impleaded as the
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complainant. After that, process was again
repeated to secure the presence of accused No.3.
Meanwhile, A1 and 2 absconded and hence NBW
and 82, 83 steps issued against them. After
completing the steps against all accused in the
case the Hon'ble CJM was addressed for getting
sanction to transfer the case to LP Register. But
sanction was not accorded to this court since the
execution of the 82,83 steps was old dated.
Hence NBW was repeated against all accused. On
14.10.2022 accused No.3 surrendered before this
court and he was granted bail. Now the case is
posted to 07.12.2022 awaiting the execution of
NBW against accused Nos.1 and 2. The above
facts are submitted for kind perusal.
4. On perusal of the report, it appears that
after moving the case in the Long Pending Register,
which was filed in the year 2011, accused Nos. 1 and 2
surrendered and they were released on bail. Thereafter,
accused Nos. 1 and 2 absconded and the case again
included in the Long Pending Register and now non-
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bailable warrant being repeatedly issued against
accused Nos. 1 and 2.
5. It is submitted by the learned counsel for
the petitioner that the cheque in question was issued by
the third accused in his personal capacity and therefore,
prosecution of the accused Nos. 1 and 2, who are the
firm and its managing partner, cannot be sustained in the
eye of law.
6. In view of the submission, I have perused
Annexure-II cheque. On mere perusal of the same, it
could not be said that the cheque was one issued either
by the third accused in his personal capacity or by the
firm towards the liability of the cheque. Therefore, this
fact is a matter of evidence, which can be considered by
the trial court only during trial. Therefore, the said
contention cannot be appreciated.
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7. The next contention raised by the learned
counsel for the petitioner is that on reading the
averments in the complaint, there is no allegation
narrating the role of the petitioner who is the second
accused in this case and therefore, the complaint is liable
to be quashed.
8. The learned counsel placed a decision of
this Court reported in [2005 KHC 1468],
S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla. On
perusal of the judgment, in a case where the averments
made in the complaint did not satisfy the statutory
requirement as contemplated under Section 141 of the
NI Act, the complaint was quashed. In the present case,
in the complaint, the status of the second accused is
arrayed as the managing partner and also it is
specifically averred that the three cheques involved in
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this case were issued towards the liability of the firm and
the cheque was issued by the third accused.
9. It is relevant to note that the petitioner
and the other accused absconded twice to flee from the
trial and this petition has been filed at the verge of the
arrest in view of the non-bailable warrant issued after
including the case in the Long Pending Register for the
second time.
10. On perusal of the complaint as a whole,
the averments would constitute offence against the
petitioner also, prima facie, and therefore, this case
cannot be quashed, without being tried. Therefore, the
petition can only be dismissed, deserving the right of the
petitioner to raise his contentions during trial.
Accordingly, this petition stands dismissed.
Since the petitioner has been absconding for a pretty
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long time, he is directed to surrender before the court
concerned and move for regular bail, in accordance with
law. If the petitioner surrenders, or he will be arrested
and produced, the learned Magistrate is directed to
expedite the trial of this matter and complete the same
within a period of three months from the date of
surrender/production.
Sd/-
A.BADHARUDEEN, JUDGE
rkj
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APPENDIX OF CRL.MC 4340/2022
PETITIONER ANNEXURES
ANNEXURE I CERTIFIED COPY OF COMPLAINT DATED
29.07.2011 FILED BY THE FIREST
RESPONDENT HEREIN BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I,
VATAKARA NUMBERED AS C.C. NO.1442/2015
ANNEXURE II TRUE COPY OF THE CHEQUE BEARING
NO.720912 DATED 28.04.2011 FOR AN
AMOUNT OF RS.45,000/- DRAWN ON THE
PERSONSAL ACCOUNT OF 3RD ACCUSED
MAINTAINED AT SOUTH INDIAN BANK,
THALASSERY BRANCH.
ANNEXURE III CERTIFIED COPY OF THE STATUTORY LAWYER
NOTICE DATED 13.06.2011 PRODUCED IN
ANNEXURE-I COMPLAINT AS DOCUMENT NO.4
