Asharaf K.M.P v. S.N. Agencies, Breeze Trading Company, Ayamotti and State (Crl.M.C. No. 4340 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 11[TH] 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** Crl.M.C.No.4340 of 2022 ..2.. **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:** Crl.M.C.No.4340 of 2022 ..3.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.M.C.No.4340 of 2022 -------------------------------------------------------Dated this the 11[th] day of January, 2023** ## **O R D E R** 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- Crl.M.C.No.4340 of 2022 ..4.. ## 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 Crl.M.C.No.4340 of 2022 ..5.. 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- Crl.M.C.No.4340 of 2022 ..6.. 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. Crl.M.C.No.4340 of 2022 ..7.. 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 Crl.M.C.No.4340 of 2022 ..8.. 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 Crl.M.C.No.4340 of 2022 ..9.. 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 Crl.M.C.No.4340 of 2022 ..10.. ## **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**