Latha Mankesh v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.MC.No. 2929 of 2008() ------------------------ST.1245/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... PETITIONER/ACCUSED: ------------ LATHA MANKESH, TEACHER, GOVT.HIGHER SECONDARY SCHOOL PANNAIPURAM PO., UTAMAPALAYAM TAMILNADU STATE. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT/COMPLAINANT & STATE: ------------- 1. K.SUKUMARAN, S/O.KOPPU, SHEENA NIVAS CHIRAKAD, KUNNATHUMEDU, PALAKKAD KERALA. 2. GOKUL AUTO FINANCE, CHINNAMANUR NO.149, M.S.COMPLEX, KASUKKADAILANE CHINNAMANUR THENI , TAMILNADU. 3. V.RAMANATHAN, S/O.P.VENKITASALAM PARTNER, GOKUL AUTO FINANCE, CHINNAMANUR, NO.149, M.S.COMPLEX KASUKKADAI LANE, CHINNAMANUR THENI , TAMIL NADU. 4. N.SIVA RAJA, S/O.LATE NAGARAJ PILLAIYARKOIL STREET, KARIYANAMPATTI VILLAGE PANNAIPURAM POST, UTHAMAPALAYAM TALUK. THENI . 5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. - BY ADV. SRI.JACOB SEBASTIAN FOR R1 PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2929 of 2008 ---------------------------------------Dated this the 15[th] day of September 2008 ## **O R D E R** The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act initiated against her by the first respondent. Cognizance has already been taken. The trial has already commenced. The case had reached the stage of 313 examination. It is at this stage that the petitioner has come before this court with this petition to quash the prosecution launched against her by the first respondent. 2. What are the reasons? The learned counsel for the petitioner, first of all contends, though such a specific contention has not seen raised in the Crl.M.C, that no enquiry under Section 202 Cr.P.C was conducted before cognizance was taken by the learned Magistrate. The petitioner resides in Tamil Nadu, outside the jurisdiction of the learned Judicial First Class Magistrate Court-III, Palakkad who has taken cognizance of the offence. Hence, after the amendment of Section 202 Cr.P.C, an enquiry under Section 202 Cr.P.C was mandatory. That having not been taken, the cognizance taken is bad in law, it is contended. Crl.M.C.No.2929/2008 2 3. The report of the learned Magistrate was called for. In the report, the learned Magistrate confirms that cognizance was taken without conducting any enquiry under Section 202 Cr.P.C as he was convinced by materials placed before him at the stage of 200 Cr.P.C that the requisite satisfaction that there is sufficient ground to proceed can be entertained. 4. This aspect to the matter has already been considered in detail by me in the judgment in **Muhammed Basheer and Another v. State of Kerala and Others [2008(3) KHC 646]** and I am not persuaded to agree that the omission to conduct 202 enquiry before process was issued against the petitioner does, in the facts and circumstances of this case, call for interference by invoking jurisdiction under Section 482 Cr.P.C. 5. The learned counsel for the petitioner then contends that as a matter of fact, there was no transaction between the first respondent/complainant and the petitioner. Allegations to that effect are totally false. The fourth respondent is the husband of the petitioner. He had a transaction with the second respondent, a financier. In respect of that transaction, signed blank cheques of the petitioner were handed over by the fourth Crl.M.C.No.2929/2008 3 respondent to the second respondent. The second respondent has now colluded with the first respondent, a henchman of it. Third respondent is the partner of the second respondent and respondents 1 to 3 in collusion are falsely initiating proceedings against the petitioner under Section 138 of the Negotiable Instruments Act. The third respondent has initiated another proceedings under Section 138 of the Negotiable Instruments Act using another cheque which, along with the cheque in this case, was handed over by the fourth respondent to the second respondent. It is, in these circumstances, prayed that the prosecution initiated against the petitioner may be quashed. 6. At the moment and with the available inputs, it would be presumptuous on the part of this court to hazard any opinion as to whether the allegations raised by the first respondent can be accepted or whether the defence set up by the petitioner must be preferred to the version advanced by the first respondent. The defence which is urged must be raised before the trial court and the trial court must come to appropriate conclusions. At the moment and with the available inputs, that controversy of facts cannot be resolved by this court exercising jurisdiction under Crl.M.C.No.2929/2008 4 Section 482 Cr.P.C. 7. Another contention raised is that before the District Munsiff, Uthamapalayam in Theni district, Annexure A7 plaint has been filed by the petitioner inter alia against respondents 1 to 4. It is prayed that there may be a direction to stay further steps in this prosecution awaiting the result of the said suit. This prayer is stoutly opposed by the learned counsel for the complainant with the contention that the belated filing of the said suit in 2008 before the District Munsiff was done with the transparent intention of delaying further proceedings in the present prosecution against the petitioner. This prosecution was initiated in 2007 whereas the said suit was filed only in 2008. According to the learned counsel for the first respondent/complainant, such suit was filed only after trial in the criminal complaint commenced and reached the stage of 313 examination. 8. Be that as it may, there can be no rigid rule that the subsequent filing of the civil proceedings must lead to or entail the stay of the proceedings in the criminal complaint initiated long earlier. I do not find any such compelling reasons which Crl.M.C.No.2929/2008 5 can persuade me to direct stay of proceedings till O.S.No.129/08 filed before the District Munsiff, Uthamapalayam is disposed of. The said prayer cannot be accepted. 9. In the result, this Crl.M.C is dismissed. But I may hasten to observe that I have not intended to express any opinion on the acceptability of the rival versions and it shall be for the learned Magistrate to consider all the pleas that the petitioner wants to place and take appropriate decision on the basis of the materials placed before the court. Needless to say, the petitioner's option to file a petition for exemption from personal appearance can of course be exercised by her. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2929/2008 6 Crl.M.C.No.2929/2008 7 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008