P. J. Kunjumon v. Edwin Tomson and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939** ## **Crl.MC.No. 4490 of 2017 ()** **--------------------------CC.NO. 491/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, ERNAKULAM --------------** **PETITIONER/ACCUSED: -----------------------------------** **P.J.KUNJUMON, AGED 57 YEARS,S/O.P.C.JOHN, PADAMADAN HOUSE, KEERTHI NAGAR, ELAMAKKARA.P.O, PIN-682 025.** **BY ADVS.SRI.K.J.JOSEPH (ERNAKULAM) SRI.V.JOHN THOMAS SMT.P.V.DENCY SRI.JACOB J. ANAKKALLUNKAL** **RESPONDENT(S)/COMPLAINANT & STATE: ---------------------------------------------------------------** **1. EDWIN TOMSON, AGED 51 YEARS,S/O.THOMAS.V.A, 812 G, VELI, PALACHIVADU, KAKKANADU WEST.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-31** **R1 BY ADVS. SRI.SHAIJAN C.GEORGE SRI.P.J.JOSEPH SRI.M.T.AJITH SMT.SAJITHA GEORGE R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 4490 of 2017 ()** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **---------------------------------------------** ## **ANNEXURE 1 TRUE COPY OF THE CRL.M.P.NO.23/2017 DATED 08.05.2017 ON THE FILE OF JFCM V ERNAKULAM** - **ANNEXURE 2 ORDER DATED 16.05.2017 IN CMP.23/2017 ON THE FILE OF JFCM V ERNAKULAM** - **ANNEXURE 3 RECEIPT DATED 28.06.2017 ISSUED BY THE ADL SUB TREASURY** - **ANNEXURE 4 TRUE COPY OF THE COMPLAINT IN C C NO.491/2016 ON THE FILE OF JFCM V ERNAKULAM** - **ANNEXURE 5 TRUE COPY OF THE PLAINT IN O.S.1210/2016 ON THE FILE OF HONBLE MUNSIFFS COURT IV ERNAKULAM.** ## **RESPONDENT(S)' ANNEXURES:** **----------------------------------------------** ## **ANNEXURE R1(A) TRUE COPY OF THE PLAINT IN O.S.NO.1210/2016.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------Crl.M.C.No.4490 of 2017 ----------------------------------------Dated this the 22[nd] day of September, 2017 ## _**O R D E R**_ The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.419 of 2016 on the file of the Judicial First Class Magistrate Court-V, Ernakulam, instituted on the basis of a complaint filed by the first respondent herein. 2. The dishonoured cheque dated 31.12.2014 involved in this case is for Rs.2,65,000/-. During the pendency of the present proceedings, the petitioner’s counsel submitted that the petitioner is prepared to pay the full cheque amount of Rs.2,65,000/- to the complainant and that the said amount would be deposited by him before the trial court. Accordingly, this Court had permitted the petitioner to deposit the said full cheque amount of Rs.2,65,000/- before the trial court concerned. The trial court (Court of the Judicial First Class Magistrate Court-V (I Additional Munsiff Court), Ernakulam) as per the report dated 14.7.2017 had informed the Registry of this Court that the accused in this case had deposited the entire cheque amount of Rs.2,65,000/- vide challan No.14763 dated 28.6.2017. Later, the learned counsel for the first respondent/complainant submitted that a civil suit is pending between the parties as O.S.No.1210 of 2016 on the : **:2::** Crl.M.C.4490/2017 file of the Munsiff Court-IV, Ernakulam, for recovery of the moneys covered by the very same cheque in question and that the interest of justice demands that the petitioner should be directed to pay interest on the cheque amount as well. 3. Learned counsel for the petitioner had fairly submitted that on the basis of the judgment of the Apex Court in _**R.Vijayan v. Baby and another**_ reported in _(_ _**2012) 1 SCC 260**_ **,** it has been held that the criminal trial court could award interest up to 9% from the date of cheque, in complaints involving offence under Section 138 of the Negotiable Instruments Act and that in case this Court so directs, then the petitioner is prepared to pay 9% interest on the said cheque amount of Rs.2,65,000/- from the date of cheque (31.12.2014) up to the date on which the said cheque amount has been deposited before the trial court. Accordingly, this Court had passed order dated 4.8.2017 directing that the petitioner should also deposit an additional amount so as to cover the interest @ 9% on the cheque amount of Rs.2,65,000/- from 31.12.2014 up to the date on which the abovesaid interest amount is deposited before the trial court. It is now pointed out by the learned counsel for the first respondent/complainant that the petitioner had in compliance with this Court’s order dated 4.8.2017 had deposited the additional interest amount coming to Rs.63,000/- and that totally an : **:3::** Crl.M.C.4490/2017 amount of Rs.3,28,000/- has been deposited by the petitioner before the trial court in relation to this case. 4. At the instance of the counsel for the first respondent/complainant, both sides permitted to approach the Mediation Centre, so that a comprehensive settlement could be effected between the parties not only in present impugned criminal proceedings, but also in the pending civil matter in O.S.No.1210 of 2016 on the file of the Munsiff Court-IV, Ernakulam. It is now pointed out that the parties have arrived at a mediation agreement and that as per the terms and conditions of the said settlement, a total amount of Rs.3,28,000/deposited by the petitioner before the trial court in relation to the present criminal complaint would be released to the respondent and further it is stated that an additional amount of Rs.78,360/- will also be paid by the petitioner to the first respondent, so that the pending civil suit in O.S.No.1012 of 2016 could also be settled. It is now pointed out by Sri.Shaijan.C.George, learned counsel appearing for the first respondent/complainant, on the basis of instructions from his party that the petitioner had already paid the balance amount of Rs.78,360/- to the complainant on 20.9.2017. 5. Heard Sri.K.J.Joseph (Ernakulam), learned counsel appearing for the petitioner/accused, Sri.Shaijan.C.George, learned Crl.M.C.4490/2017 : **:4::** counsel appearing for the first respondent/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. 6. It is common ground that the cheque amount said to have been issued on 31.12.2014 involved in this case is for Rs.2,65,000/-. The Apex Court has held in _**R.Vijayan v. Baby and another**_ reported in ( _**2012) 1 SCC 260**_ , paragraph 18 that the criminal trial court could award interest up to 9% on the cheque amount from the date of cheque. The Apex Court has held in the judgment in _**Indian Bank Association and others v. Union of India and others**_ reported in _**(2014) 5 SCC 590**_ in paragraph 23.3 that the trial court while issuing summons could indicate that if the accused makes application for compounding of offences at the initial hearing of the case, then the same would be considered at the earliest, etc. Therefore, in case the applicant is willing to settle the dispute and pay the cheque amount at the initial stage of the case, then the trial could pass appropriate orders for compounding of the offence. The Apex Court has now held in the judgment in _**Lafarge Aggregates and Concrete India Private Ltd. v. Sukarsh Azad and another**_ reported in ( _**2014) 13 SCC 779**_ that in case where the accused pays the cheque amount, then even if it is objected to by the complainant, the Court need not permit the complainant to prosecute the accused in pursuance of such a complaint. In that case, on payment of the cheque : **:5::** Crl.M.C.4490/2017 amount, the High Court had quashed the complaint which was challenged before the Apex Court which led to the abovesaid judgment of the Apex Court reported in _(2014) 13 SCC 779_ . 7. Therefore, in the light of all these aspects, it is clear that once the accused has paid the cheque amount at the earlier stage, then the High Court could quash the complaint by virtue of the enabling powers conferred under Section 482 of the Cr.P.C. or the trial court could permit the parties to compound the offence. In the instant case, the petitioner/accused has paid not only the full cheque amount of Rs.2,65,000/-, but has also paid interest thereon at the rate of 9% by paying the additional amount and now totally an additional amount of Rs.3,28,000/- has been deposited by the petitioner before the trial court in this case. That apart the petitioner has even paid a further amount of Rs.78,360/- by way of additional interest to the complainant, so that the civil proceedings is also compromised between the parties. In the light of these aspects, this Court is of the considered opinion that the petitioner need not be refused the reliefs and he need not be made to wait for the trial court proceedings for compounding offence or withdrawal of the complaint. 8. Accordingly, it is ordered in the interest of justice that the impugned complaint in C.C.No.491 of 2016 on the file of the Judicial : **:6::** Crl.M.C.4490/2017 First Class Magistrate Court-V, Ernakulam, in which the petitioner has been arrayed as accused and all further proceedings taken in pursuance thereof will stand quashed. The petitioner will produce certified copy of this order before the criminal trial court for necessary information. It is also ordered that the trial court will take steps without any further delay to release the deposit amount of Rs.3,28,000/- in relation to this case to the first respondent/complainant on an application in that regard made by that party. As regards effectuation of the mediation agreement for compromising of the civil suit, it is for the parties to approach the civil court on the basis of the mediation agreement and take further proceedings in that regard for finalising the compromise in that matter. The Registry will forward a copy of this order along with an attested copy of the mediation agreement to the Munsiff Court concerned at Ernakulam, who is dealing with O.S.No.1210 of 2016 and this shall be done at the cost of the first respondent/complainant. With these observations and directions, the Crl.Miscellaneous Case stands finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl : **:7::** Crl.M.C.4490/2017 ## **ALEXANDER THOMAS, J.** ---------------------------------------- Crl.M.C.No.4490 of 2017 ----------------------------------------Dated this the 9[th] day of August, 2017 ## _**O R D E R**_ Sri.John.S.Ralph, learned counsel appearing for the petitioner, would submit that the petitioner has already deposited Rs.62,000/before the trial court in relation to this case towards 9% interest in compliance with this Court's order dated 4.8.2017 and the copy of the receipt dated 8.8.2017 has also been made available for the perusal of this Court. 2. Sri.Shaijan C.George, learned counsel appearing for the first respondent/complainant, would submit that a civil suit as O.S.No.1210 of 2016 has been filed before the Munsiff Court, Ernakulam, by the respondent/complainant herein seeking recovery of the moneys covered by the very same dishonoured cheque and that the petitioner/accused is the defendant in that suit and that this Court may also endeavour to ascertain from the petitioner whether comprehensive mediated agreement would be arrived at for settling not only the present impugned criminal proceedings, but also the civil proceedings in O.S.No.1210 of 2016 now pending on the file of the Munsiff Court, : **:8::** Crl.M.C.4490/2017 ## Ernakulam. 3. Learned counsel appearing for the petitioner wants time to get instructions from his party. The petitioner's counsel is requested to ascertain from the petitioner as to whether he could pay additional interest (over and above the 9% interest already paid) on the cheque amount of Rs.2,65,000/- from the date of cheque onwards, in order to facilitate comprehensive settlement in both the impugned criminal proceedings as well as the civil suit. The petitioner's counsel will get instructions from his party and submit before this Court whether the extra interest could be paid over and above the 9% interest already paid, so that a comprehensive settlement could be arrived at in the impugned criminal proceedings as well as the civil suit. List on next 16.8.2017. **ALEXANDER THOMAS JUDGE** csl Crl.M.C.4490/2017 : **:9::** ## **ALEXANDER THOMAS, J.** ---------------------------------------Crl.M.C.No.4490 of 2017 ----------------------------------------Dated this the 4[th] day of August, 2017 ## _**O R D E R**_ Sri.Shaijan C.George, learned counsel appearing for the first respondent/complainant, would submit on the basis of instructions of his party that the first respondent/complainant is prepared to fully compromise the matter in relation to the present impugned criminal proceedings, if the petitioner/accused pays interest @9% per annum on the dishonoured cheque amount of Rs.2,65,000/- from the date of cheque (31.12.2014) along with the cheque amount of Rs.2,65,000/-, which has already been deposited before the trial court on 28.6.2017. It is also submitted on behalf of the first respondent/complainant that in the event of paying the abovesaid cheque amount along with interest as stated herein above, then the first respondent/complainant is prepared for compounding of the offence or that this Court may quash the complaint and that this should be without prejudice to the right of the first respondent/complainant to seek interest over and above 9% on the : **:10::** Crl.M.C.4490/2017 cheque amount through appropriate civil proceedings and that a civil suit is pending as O.S.No.1210 of 2016 before the Munsiff Court, Ernakulam. 2. Sri.john.S.Ralf, learned counsel appearing for the petitioner/accused, would submit on the basis of instructions from his party that the petitioner is willing for this course of action and that the petitioner would deposit interest @9% on Rs.2,65,000/- from 31.12.2014 up to the date on which the abovesaid interest amount is to be deposited before the trial court. The petitioner is given time by three days to make the said deposit before the trial court and the copy of the receipt in that regard should be made available. List the case on 9.8.2017. **ALEXANDER THOMAS JUDGE** csl