Omanakunjamma v. State of Kerala & Ansari K.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936** ## **Crl.MC.No. 3697 of 2014 ()** **--------------------------CC.NO. 573/2013 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM -----------------------** ## **PETITIONER/COMPLAINANT :** **--------------------------------------------** **OMANAKUNJAMMA, AGED 36 YEARS D/O.VIJAYAPPAN PANICKER, KOYILPARAMBIL HOUSE, KNRA-12 BTC ROAD, MARADU P.O., KANAYANNOOR TALUK ERNAKULAM DISTRICT.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN** ## **RESPONDENTS/STATE/ACCUSED :** **---------------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031.** **2. ANSARI K.S., S/O.SAINULABDEEN, PLOT NO.15, HIRES VILLAS MOHIMPURAM ROAD, EROOR SOUTH, TRIPUNITHURA ERNAKULAM-682306.** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 3697 of 2014 () -------------------------------------** ## **APPENDIX** **PETITIONERS' ANNEXURES : ------------------------------------------ANNEXURE-I: COPY OF THE COMPLAINT FILED BY THE PETITIONER IN JANUARY, 2013. ANNEXURE-II: COPY OF THE CMP NO.348/2013 DATED 26.02.2013. RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3697 of 2014 .................................................. Dated this the 14[th] day of July, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner, who is the complainant in C.C.No.573/2013 pending before the Additional Chief Judicial Magistrate Court, Ernakulam for speedy disposal of the case under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that petitioner is the complainant in C.C.No.573/2013 pending before the Additional Chief Judicial Magistrate Court, Ernakulam, which was taken on file on the basis of a private complaint filed by the petitioner against the second respondent alleging offence under Section 138 of the Negotiable Instruments Act. The second respondent used to avail monetary help from the petitioner for his business purposes. While so, during the the settlement of accounts in the year 2011, it was found that amount of Rs.8 lakhs was due to the petitioner from the 2[nd] respondent and in discharge of that amount, he had issued a cheque, which when presented for collection was dishonoured for the reason Crl.M.C.No.3697 of 2014 2 'found insufficient'. In spite of notice issued, the 2[nd] respondent has not paid the amount. So the petitioner has filed the above complaint. 3. Though the complaint was filed in the year 2013, it was not disposed of so far. The relationship between the petitioner and her husband strained and she has to lookafter her old mother and two children. Unless the case is disposed of at the earliest point of time, she will be put to serious hardship. Though she filed application for early disposal, the learned Magistrate has not passed any orders in that application. So the petitioner has no other remedy except to approach this court seeking the following relief: “In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to issue a direction to the learned Additional Chief Judicial Magistrate, Ernakulam to dispose of C.C.No.573/2013 at the earliest”. 4. Considering the nature of relief claimed in this petition, this Court felt that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner, the learned Public Prosecutor appearing for the first respondent dispensing with notice to the 2[nd] respondent. Crl.M.C.No.3697 of 2014 3 5. The counsel for the petitioner submitted that since she is a lady and not attended by her husband, has to look after her aged mother and two children and she is finding it difficult to contest the case as well. Unless the case is disposed of at the earliest, she will be put to serious hardship. 6. The learned Public Prosecutor submitted that considering the fact that large number of cases are pending before that court and courts are finding it difficult to dispose of the cases. 7. I have called for a report from the Additional Chief Judicial Magistrate Court, Ernakulam regarding the present stage of the case and time required for disposal of the case. The learned Additional Chief Judicial Magistrate, Ernakulam sent a report which reads as follows: “C.C.No.573/2013 is a complaint, filed U/s 138 NI Act by Smt. Omana Kunjamma. In this case, on 26.2.2013 summons issued to the accused to appear on 27..4.2013. On that day, summons not returned and case adjourned to 24.5.2013. Accused appeared on that day, bail granted to him and he pleaded not guilty when particulars of offence were read over and explained to him. Thereafter, the case posted to complainant's 4 Crl.M.C.No.3697 of 2014 evidence, Going through the complaint, an amount of Rs. 8 lakhs is involved in this case. At present, there is no idea about the quantum of evidence to be adduced by the prosecution and defence, I may be permitted to submit that now around 23,000 cases pending before this court. Yet, I have the confidence of dispose this case within 6 months, if both sides fully cooperate with this court”. 8. The grievance of the petitioner was that being a 138 matter, courts are bound to dispose of the cases within a time frame mentioned in the Act. Though courts are not able to fulfill that, atleast some attempt must be made to expedite trial of the case as well. So under the circumstances, the petitioner has no other option except to approach this Court for this purpose. 9. It is true that Negotiable Instruments Act mandates that cases under Section 138 of the Act has to be disposed of within four months from the date of filing of the complaint. Though such a statutory mandate is there, courts are finding it difficult to exercise the same in its letter and spirit on account of large number of cases pending before each courts. In the decision reported by the Apex Court in I **ndian Bank** 5 Crl.M.C.No.3697 of 2014 **Association and others v. Union of India & others** (ILR 2014 (2) Kerala 469) wherein the Hon'ble Supreme Court has given guidelines as to how disposal of 138 matters have to be done. So the learned Magistrate has bound to follow that procedure. However, considering the fact that large number of cases are pending before courts, this Court feels that the petition can be disposed of giving a direction to the learned Magistrate to dispose of the case within four months from the date of receipt of a copy of the order. So the petition is disposed of as follows: The Additional Chief Judicial Magistrate, Ernakulam is directed to dispose of C.C.No.573/2013 pending before that court as expeditiously as possible at any rate within four months from the date of receipt of a copy of this order. Office is directed to communicate this order to the concerned court immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge cl Crl.M.C.No.3697 of 2014 6