Jenimon vs Ibrahim E.A
2024 Latest Caselaw 5681 Ker

Kerala High Court

Jenimon vs Ibrahim E.A on 19 February, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945
                       CRL.MC NO. 8499 OF 2023
        CRIME NO.0/0 OF Thrikkakara Police Station, Ernakulam
  AGAINST THE ORDER/JUDGMENT ST 240/2018 OF JUDICIAL FIRST CLASS
                      MAGISTRATE COURT, KAKKANAD
PETITIONER/ACCUSED:

           JENIMON,
           AGED 55 YEARS
           VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE,
           WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT.,
           PIN - 683556
           BY ADVS.
           P.PARAMESWARAN NAIR
           HELEN P.A.
           SOORAJ T.ELENJICKAL
           SREELATHA PARAMESWARAN NAIR
           ATHUL ROY
           STEPHANIE SHARON


RESPONDENTS:

    1      STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
           PIN - 682031
    2      IBRAHIM E.A
           AGED 33 YEARS
           S/O. ALIYAR, IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU
           VILLAGE, KUMARAPURAM P.O., ERNAKULAM DISTRICT., PIN -
           683556
           BY ADV Siraj K H


OTHER PRESENT:

           SRI. T.R. RANJITH (PP)


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.02.2024, ALONG WITH Crl.MC.8487/2023, 8519/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                             2



       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA,
                         1945
                CRL.MC NO. 8487 OF 2023
CRIME NO.ST NO.242/2018 OF Thrikkakara Police Station,
                       Ernakulam
  AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT
         SESSIONS COURT/SUB COURT, PERUMBAVOOR
 ST 242/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
                       KAKKANAD
PETITIONER:

         JENIMON,
         AGED 55 YEARS
         VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI
         VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR,
         ERNAKULAM DISTRICT., PIN - 683556
         BY ADVS.
         P.PARAMESWARAN NAIR
         SREELATHA PARAMESWARAN NAIR
         SOORAJ T.ELENJICKAL
         HELEN P.A.
         ATHUL ROY
         STEPHANIE SHARON


RESPONDENT/S:

   1     IBRAHIM E.A.
         IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE,
         KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN -
         683565
   2     STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         BY ADV Siraj K H
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                 3

     THIS   CRIMINAL   MISC.    CASE   HAVING   COME   UP   FOR
ADMISSION   ON   19.02.2024,   ALONG   WITH   Crl.MC.8499/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                    4



         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA,
                                 1945
                     CRL.MC NO. 8519 OF 2023
                   CRIME NO.0/0 OF , Ernakulam
  AGAINST THE ORDER/JUDGMENT ST 241/2018 OF JUDICIAL
          FIRST CLASS MAGISTRATE COURT, KAKKANAD
PETITIONER:

            JENIMON,
            AGED 55 YEARS
            VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI
            VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR,
            ERNAKULAM DISTRICT., PIN - 683556
            BY ADVS.
            P.PARAMESWARAN NAIR
            ATHUL ROY
            STEPHANIE SHARON
            HELEN P.A.
            SOORAJ T.ELENJICKAL
            SREELATHA PARAMESWARAN NAIR


RESPONDENTS:

   1        STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
            KERALA, PIN - 682031
   2        IBRAHIM E.A
            AGED 33 YEARS, S/O. ALIYAR, IRUPPAKKOOTTIL
            HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O.,
            ERNAKULAM DISTRICT., PIN - 683565
            BY ADV Siraj K H


       THIS   CRIMINAL    MISC.    CASE   HAVING   COME   UP   FOR
ADMISSION     ON   19.02.2024,    ALONG   WITH   Crl.MC.8499/2023
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                             5

AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                             6



       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA,
                         1945
                CRL.MC NO. 8524 OF 2023
CRIME NO.ST NO.1917/2018 OF Thrikkakara Police Station,
                       Ernakulam
  AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT
         SESSIONS COURT/SUB COURT, PERUMBAVOOR
ST 1917/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
                       KAKKANAD
PETITIONER:

         JENIMON
         AGED 55 YEARS
         VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI
         VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR,
         ERNAKULAM DISTRICT, PIN - 683556
         BY ADVS.
         P.PARAMESWARAN NAIR
         SOORAJ T.ELENJICKAL
         ATHUL ROY
         STEPHANIE SHARON
         HELEN P.A.
         SREELATHA PARAMESWARAN NAIR


RESPONDENTS:

   1     IBRAHIM E.A.
         AGED 33 YEARS
         IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE,
         KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN -
         683565
   2     STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         BY ADV Siraj K H
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                 7

     THIS   CRIMINAL   MISC.    CASE   HAVING   COME   UP   FOR
ADMISSION   ON   19.02.2024,   ALONG   WITH   Crl.MC.8499/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                             8



       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA,
                         1945
                CRL.MC NO. 8554 OF 2023
    CRIME NO.S.T.NO.1919/2018 OF Thrikkakara Police
                  Station, Ernakulam
  AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT
         SESSIONS COURT/SUB COURT, PERUMBAVOOR
ST 1919/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
                       KAKKANAD
PETITIONER:

         JENIMON
         AGED 55 YEARS
         JENIMON VANDANATHIL HOUSE, VENGOLA KARA,
         ARAKKAPADI VILLAGE, WEST VENGOLA P.O.,
         PERUMBAVOOR, ERNAKULAM DISTRICT-683 556., PIN
         - 683556
         BY ADVS.
         P.PARAMESWARAN NAIR
         SREELATHA PARAMESWARAN NAIR
         ATHUL ROY
         STEPHANIE SHARON
         HELEN P.A.
         SOORAJ T.ELENJICKAL


RESPONDENTS:

   1     IBRAHIM E.A.
         AGED 33 YEARS
         IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE,
         KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN -
         683565
   2     STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         BY ADVS.
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                   9

            Siraj K H
            MOHAMMED SHAD K.A.(K/001636/2023)


     THIS     CRIMINAL   MISC.    CASE   HAVING   COME   UP   FOR
ADMISSION    ON   19.02.2024,    ALONG   WITH   Crl.MC.8499/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                             10



       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA,
                         1945
                CRL.MC NO. 8602 OF 2023
 CRIME NO.ST 1918/2018 OF Thrikkakara Police Station,
                       Ernakulam
  AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT
         SESSIONS COURT/SUB COURT, PERUMBAVOOR
ST 1918/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
                       KAKKANAD
PETITIONER:

         JENIMON
         AGED 55 YEARS
         VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI
         VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR,
         ERNAKULAM DISTRICT-683 556., PIN - 683556
         BY ADVS.
         P.PARAMESWARAN NAIR
         SREELATHA PARAMESWARAN NAIR
         SOORAJ T.ELENJICKAL
         STEPHANIE SHARON
         ATHUL ROY
         HELEN P.A.


RESPONDENTS:

   1     IBRAHIM E.A
         AGED 33 YEARS
         IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE,
         KUMARAPURAM P.O., ERNAKULAM, PIN - 683565
   2     STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         BY ADVS.
         Siraj K H
         MOHAMMED SHAD K.A.(K/001636/2023)
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                 11



     THIS   CRIMINAL   MISC.    CASE   HAVING   COME   UP   FOR
ADMISSION   ON   19.02.2024,   ALONG   WITH   Crl.MC.8499/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES
                                        12

                  BECHU KURIAN THOMAS, J.
                  -----------------------------------------
      Crl.M.C. Nos. 8499 of 2023, 8487/2023, 8519/2023,
             8524/2023, 8554/2023 & 8602/2023
                   ----------------------------------------
            Dated this the 19th day of February, 2024


                                  ORDER

Petitioner challenges the criminal proceedings initiated

against him in S.T.Nos.240/2018, 242/2018, 241/2018,

1917/2018, 1919/2018, and 1918/2018, respectively, on the files

of the Judicial First Class Magistrate Court, Kakkanad

(TEMPORARY). These cases arise out of a complaint filed under

Section 138 of the Negotiable Instruments Act, 1881. The challenge

is raised on the ground that, a transaction which has the trappings

of a pure civil dispute is being given the color of a criminal case to

pressurize the petitioner to part with a huge amount.

2. The allegations in all these cases are that the petitioner is

the owner of a metal crusher unit, and the second respondent had

taken the said crusher unit on lease upon the terms and conditions

of lease agreement entered into between the parties for a period of

eleven months. An amount of Rs.1,65,00,000/- was paid by the

second respondent to the petitioner as lease security money. When

the rental agreements entered into between the parties expired, the

second respondent demanded the advance security amount from CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

the petitioner, and the petitioner promised to return the entire

amount in instalments and issued six cheque bearing Nos.095523,

095525, 095524, 095527, 095528, and 095526. When the cheques

were presented for encashment, they were returned dishonoured

with the memo 'payment stopped by drawer', and thereafter, the

complaint was filed.

3. On a perusal of the pleadings in these petitions under

Section 482 of Cr.P.C., it is evident that the main ground of

challenge is that there is a civil case filed by the second respondent

as O.S N0.34/2018 before the Sub-Court, Perumbavoor; seeking

recovery of an amount of Rs.1,74,00,000/- from the petitioner, and

therefore, it is alleged that the criminal case is filed only to compel

payment in the civil case.

4. Having heard the respective counsel, this Court is of the

view that the proceedings under Section 138 N.I.Act arises out of a

cause of action from the dishonour of a Negotiable Instrument.

Recovery of amount due under a negotiable instrument is different

from the criminal proceedings under Section 138 of the Negotiable

Instruments Act. Merely because a civil suit has been filed for

recovery of money does not mean that the proceedings under

Section 138 of the Negotiable Instruments Act ought to be quashed.

Both are different and arising out of distinct causes of action. CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

5. Even otherwise, as the learned counsel for the 2 nd

respondent pointed out the civil suit was filed much after the

criminal case was instituted. Therefore, the maintainability of the

criminal prosecution cannot be questioned on the ground of the

civil suit.

Further civil case is filed for recovery of money while the

criminal case is filed for imprisonment. Therefore, I find no merit in

these Crl.M.Cs and they are dismissed.

BECHU KURIAN THOMAS JUDGE AJM CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR Annexure A3 CERTIFIED COPY OF THE JUDGMENT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR DATED 12.01.2023 Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREEIN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR DATED 09.02.2023 Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure A6 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT DATED 10.02.2018 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES AnnexureA1 TRUE COPY OF THE PLAINT IN O.S.

Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN

Annexure A3 TRUE COPY OF THE JUDGMENT DATED

Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure A6 CERTIFIED COPY OF THE COMPLAINT IN S.T.NO. 241/2018 JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKAMNAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 FILED BY 1ST RESPONDENT Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF FILED BY PETITIONER IN O.S.NO.34/2018 BEFORE SUB COURT, PERUMBAVOOR Annexure A3 TRUE COPY OF THE JUDGMENT DATED 12.01.2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE IN I.A.NO.6/2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure6 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.02.2018 IN ST.NO.1917/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT FILED BY 1ST RESPONDENT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR.

Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF FILED BY PETITIONER IN O.S.NO.34/2018 BEFORE SUB COURT, PERUMBAVOOR Annexure A3 TRUE COPY OF THE JUDGMENT DATED 12.01.2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE IN I.A.NO.6/2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure6 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.08.2018 IN S.T.NO.1919/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 5.10.2018 Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF IN O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 01.01.2021 Annexure A3 TRUE COPY OF THE JUDGMENT N O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 2.01.2023 Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE N O.S.NO.34/2018 SUB COURT, PERUMBAVOOR DATED 09.02.2023 Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure A6 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.02.2018IN O.S.NO.1918/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT IN O.S.

Annexure A2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.

Annexure A3 TRUE COPY OF THE JUDGMENT IN O.S. NO.

34/2018 DATED 12.1.2023 Annexure A4 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE Annexure A5 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 Annexure A6 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT

TRUE COPY