Mansoor Ibrahim M.V. v. Sareena Thottontavida and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** ## **Crl.MC.No. 1485 of 2017 ()** **--------------------------S.T.C.NO. 3630/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANNUR** **--------------------** ## **PETITIONER/ACCUSED:** **----------------------------------** **MANSOOR IBRAHIM M.V., S/O.V.V.IBRAHIM, AGED 50 YEARS, RESIDING AT P.M.HOUSE, PUZHATHI, P.O. CHIRAKKAL, KANNUR DISTRICT.** ## **BY ADV. SRI.K.RAJESH SUKUMARAN** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **------------------------------------------------------------** ## **1. SAREENA THOTTONTAVIDA,** **W/O.AMEER ALI, AGED 41 YEARS, THOTTONTAVIDA HOUSE, ANAYIDUKKU, KANNUR CITY, KANNUR-670 003.** ## **2. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 1485 of 2017 () -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **-------------------------------------------** **ANNEXURE-A1: COPY OF THE COMPLAINT, STC 3630/2015 FILED BY THE 1ST RESPONDENT/COMPLAINANT AGAINST THE PETITIONER/ACCUSED BEFORE THE J.F.C.M COURT NO.II, KANNUR.** **ANNEXURE-A2: COPY OF THE AGREEMENT DATED 03.08.2015 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT. ANNEXURE-A3: COPY OF THE RECEIPT DATED 28.10.2016 ISSUED BY THE 1ST RESPONDENT/COMPLAINANT TO THE PETITIONER/ACCUSED ACKNOWLEDGING THE RECEIPT OF RS.2 LAKHS.** **RESPONDENT(S)' ANNEXURES: NIL** **------------------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 1485 of 2017 ================== Dated this the 22[nd] day of February, 2017 O R D E R The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act in Summary Trial Case, S.T.C.No. 3630/2015 on the file of the Judicial First Class Magistrate's CourtII, Kannur, instituted on the basis of the complaint filed by the 1[st] respondent herein. As per the case projected in the complaint, the accused, who was in need of money for development of his business, had approached the complainant to lend an amount of Rs.10 lakhs with the understanding that it will be repaid within 2 months and that the complainant had advanced the said amount of Rs.10 lakhs to the accused. That later, for discharge of the said amount, the accused had issued the cheque in question dated 6.8.2015 for Rs.10 lakhs drawn in favour of the complainant, which when presented returned with the endorsement “payment stopped by the drawer”. Thereafter, the complainant had instituted the instant complaint, which led to S.T.C.No.3630/2015 on the file of Crl.M.C.1485/17 - : 2 :- the Judicial First Class Magistrate's Court-II, Kannur. It is stated by the petitioner that para 2 of Anx.A-1 complaint itself states that an agreement to evidence the transaction was also executed by the accused in favour of the complainant. But that the said agreement has not been produced along with Anx.A-1 complaint and that Anx.A-2 is the said agreement referred to in para 2 of Anx.A-1 complaint. That as per Anx. A-2 agreement dated 3.8.2015 entered into between the petitioner and the 1[st] respondent, out of the total amount of Rs.10 lakhs, an amount of Rs.2 lakhs was repaid by the petitioner to the 1[st] respondent on 3.8.2015 as referred to in Anx.A-2 agreement dated 3.8.2015. It is also averred that a further amount of Rs.2 lakh was paid by the petitioner to the complainant as evident from Anx.A-3 receipt dated 22.10.2016. It is pointed out that the instant cheque in question was given as security by the petitioner for the abovesaid transaction. 2. It is also the case of the petitioner that he is a nonresident Indian working abroad and that the statutory demand notice sent by the complainant was returned with the endorsement, “addressee left India” and that as he was not in station, he was not able to receive the summons issued from the trial court. Further that Crl.M.C.1485/17 - : 3 :- the address of the petitioner as mentioned in the impugned Anx.A1 complaint does not tally with the correct address as shown in Anxs. A-2 and A-3. That this has resulted in the issuance of NBW against the petitioner. It is averred that the petitioner is ready to appear before the learned Magistrate and seek bail and face trial, but that he apprehends that if he surrenders, the learned Magistrate may naturally remand the petitioner to judicial custody as NBW has been issued against him, which is pending, etc. It is also stated that as petitioner finds difficult to appear on all posting dates before the trial court, more particularly as he is a non-resident Indian who is working abroad, he would seek personal exemption from appearing before the trial court, etc. In the light of these aspects, the petitioner has filed the instant Crl.M.C. by taking recourse to the enabling powers conferred on this Court under Sec.482 of the Cr.P.C. with the following prayers: “i) To recall the Non-Bailable Arrest Warrant issued against the Petitioner/Accused in S.T.C.No.3630/2015 on the file of the Judicial First Class Magistrate Court-II, Kannur. ii) To grant Personal exemption u/s 205 Cr.P.C. from appearing before the Judicial First Class Magistrate Court-II, Kannur on all the posting dates.” 3. Sri.K.Rajesh Sukumaran, learned counsel appearing for the petitioner would also submit that the offence under Sec.138 of Crl.M.C.1485/17 - : 4 :- the Negotiable Instruments Act is a bailable offence. In this regard that this Court in the judgment in Oseela Abdul Khaker v. State of Kerala reported in 2012 (4) KLT 535 has considered the issue as to whether the magistrate is correct in remanding an accused, who has offered to give bail for the reason that NBW is pending against such person and that steps under Secs.82 and 83 of the Cr.P.C. are also taken such person. Answering this issue, this Court has held that when the accused has surrendered before the magistrate in a bailable offence, in a case relating to bailable offence, it is not proper to pass a drastic order to incarcerate such an accused and that the fact that non bailable warrant has been issued against the accused, in such a case involving bailable offence, then whatever be the justification of such an order, that by itself will not be a ground to incarcerate the accused. This Court held in that case that the learned Magistrate had in that case evidently has not taken note that where the offence is bailable and the accused, if he offers to give bail, has to be released pending his trial and there is no question of Police officer or court exercising any discretion in granting bail and only choice is of demanding security with surety, etc. and that the only exception that can be made against an accused proceeded of Crl.M.C.1485/17 - : 5 :- bailable offence would be in a situation covered by sub section (2) of Sec.439 of the Cr.P.C. The fact that the magistrate has issued NBW against such a accused and proceeded with coercive steps under Secs.82 and 83 of the Cr.P.C. is no ground to refuse bail when the offence is bailable and that the accused is entitled to be released on bail as of right. It will be profitable to refer to para 9 of the said decision, which reads as follows: "9. When the 1[st] petitioner surrendered before the Magistrate I fail to understand why a drastic order to incarcerate her was called for. The fact that a non - bailable warrant has been issued against her in the case whatever be the justification for such an order by itself is not at all a ground to incarcerate her. The offence imputed against her under S.12(1)(b) of the Act contemplates punishment of imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,000/- or with both. As the offence falls under Clause II of the Ist Schedule to the Code with punishment for less than three years, it is bailable. The learned Magistrate evidently has not taken note that where the offence is bailable the accused if he offers to give bail has to be released pending his trial, and there is no question of the police officer or Court exercising any discretion in granting bail. Only choice is of demanding security with surety. An exception thereto can be made against an accused proceeded of bailable offence only in a situation covered by sub-section (2) of S.439 of the Code. The Magistrate has issued a non - bailable warrant against such accused and proceeded with coercive steps under S.82 and S.83 of the Code against such accused, is no ground to refuse bail when the offence imputed is bailable and she is entitled to be released on bail as of right." 4. In this regard, it is also relevant to note the judgment of the Apex Court in the case Rasiklal v. Kishore, reported in (2009) 4 ## SCC 446, wherein it has been held para 9 thereof as follows: '9. As is evident, the appellant is being tried for alleged commission of offences punishable under Sections 499 and 500 of Crl.M.C.1485/17 - : 6 :- the Penal Code. Admittedly, both the offences are bailable. The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. The said section reads as under: _“436. In what cases bail to be taken.—(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail:_ _Provided that such officer or court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided._ _Explanation.—Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of this proviso:_ _Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446-A._ _(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under Section 446.”_ There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the section instead of taking bail from him.' ## 5. Heard Sri.K.Rajesh Sukumaran, learned counsel appearing for the revision petitioner accused and Sri.Saigi Jacob Crl.M.C.1485/17 - : 7 :- Palatty, learned Prosecutor appearing for R-2 State. In the nature of the order proposed to be passed in this case, notice to R-1 stands dispensed with. 6. The offence alleged against the petitioner is one under Sec. 138 of the Negotiable Instruments Act, which is bailable. Therefore, going by the provisions contained in Sec.436 of the Cr.P.C., as well as the legal principles laid down by this Court and by the Apex Court in the aforequoted judgments, the accused is entitled to be released on bail, and the fact that NBW was issued against the accused or other coercive steps were initiated against him, etc. are no ground to refuse bail. Accordingly, it is ordered that in case the petitioner voluntary surrenders and personally appears before the jurisdictional magistrate's court concerned within a period of 3 weeks from today and submits appropriate applications for bail, recall of warrant, etc., the learned Magistrate shall consider those applications on the same day and will pass appropriate orders, in the light of the legal principles laid down by this Court and by the Apex Court quoted herein above and in the light of the observations made by this Court herein above and orders in that regard shall be passed on the very same day. Until Crl.M.C.1485/17 - : 8 :- orders are passed by the learned Magistrate as directed above, the execution of all further coercive steps pending against the petitioner including the issuance of the NBW against him will remain under suspension. However, it is made clear that in case the petitioner does not personally appear before the learned Magistrate within the aforestated time limit, as directed above, the abovesaid directions will stand automatically vacated. While passing orders on the abovesaid applications to be filed by the petitioner, the learned Magistrate should act in accordance with the legal principles laid down by this Court and by the Apex Court in the aforementioned judgments as well as in the light of the observations made by this Court herein above. 7. As regards the prayer made by the petitioner for personal exemption under Sec.205 of the Cr.P.C. after securing bail, the petitioner will be at liberty to file appropriate application through his counsel seeking personal exemption under Sec.205 of the Cr.P.C., in which case the learned Magistrate shall pass appropriate orders theron in the light of the legal principles laid down by this Court judgments as in Reddy v. Excel Glasses Ltd. reported in 2010 (3) KLT SN 11 (C.No.14) and the decisions Crl.M.C.1485/17 - : 9 :- reported in AIR 2001 SC 3625 [Bhaskar Industries Ltd. v. Dhiwani Denim & Apparel Ltd.], 1989 Crl.L.J. 523 [Ajith Kumar Chakravorty & Ors. v. Serampore Municipality]. It will be open to the petitioner to place reliance on those judgments and other appropriate court rulings and the learned Magistrate shall take decision on such applications in the light of the legal principles laid down in those rulings. 8. The petitioner may produce necessary documents to show that he is a non-resident Indian, who is working abroad and those aspects should also be duly taken into account by the learned Magistrate. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge