Sajitha v. Shree Thiruvangad Chits Pvt. Ltd. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939** **Crl.MC.No. 3665 of 2017 () ---------------------------** **ST 6366/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE.** **......** **PETITIONER/ACCUSED: -------------------** **SAJITHA, W/O.SHAHUL HAMEED, AGED 34, M.P.HOUSE, VAIDYARANGADI, KOZHIKODE DISTRICT-673633.** **BY ADVS.DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SRI.S.SIDHARDHAN SMT.R.UDAYA JYOTHI SMT.M.SUSEELA** **RESPONDENTS/COMPLAINANT & STATE: --------------------------------** **1. SHREE THIRUVANGAD CHITS PVT. LTD., IIND FLOOR, MANUPLAZA, AIRPORT ROAD, RAMANATTUKARA P.O., CALICUT - 673633, REPRESENTED THE DIRECTOR AS WELL AS AUTHORISED AGENT MR.GIREESH, AGED ABOUT 38, S/O.VELAYUDHAN NAIR.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **Crl.MC.No. 3665 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE I: TRUE COPY OF THE COMPLAINT DATED 9.9.2010 LODGED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT V, KOZHIKODE. ANNEXURE II: TRUE COPY OF THE KARAR DATED 8.3.2013 (TOGETHER WITH TYPEWRITTEN COPY)EXECUTED BY THE 1ST RESPONDENT. ANNEXURE III: TRUE COPY OF THE COMPLAINT DATED 22.3.2013 LODGED BEFORE THE CIRCLE INSPECTOR OF POLICE, NALLALAM TOGETHER WITH ACKNOWLEDGEMENT DATED 25.3.2013.** **ANNEXURE IV: TRUE COPY OF THE F.I.R DATED 1.6.2013 IN REGISTERED BY THE FEROKE POLICE STATION. ANNEXURE V: TRUE COPY OF THE INFORMATION PROVIDED BY THE CIRCLE INSPECTOR OF POLICE, CHERUVANNOOR. ANNEXURE VI: TRUE COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI DAILY DATED 11.6.2013. ANNEXURE VII: TRUE COPY OF THE PLAINT DATED 15.7.2015 IN O.S.NO.82/2015 OF THE SUB COURT-IA, KOZHIKODE. ANNEXURE VIII: TRUE COPY OF THE MEMO DATED 27.2.2017 FILED BY THE PUBLIC PROSECUTOR TOGETHER WITH STATEMENT OF FACTS DATED NIL OF THE SUB INSPECTOR OF POLICE IN CRL.M.C NO.4743/2015 BEFORE THIS HONOURABLE COURT. ANNEXURE IX: TRUE COPY OF THE MEMO DATED 29.3.2017 FILED BY THE PUBLIC PROSECUTOR TO TOGETHER WITH STATEMENT OF FACTS DATED NIL OF THE SUB INSPECTOR OF POLICE IN CRL.M.C NO.4743/2015 BEFORE THIS HONOURABLE COURT.** **ANNEXURE X: TRUE COPY OF JUDGMENT IN CRL M C NO.4743/15 DATED 10.4.2017.** **ANNEXURE XI: TRUE COPY OF THE PETITION DATED 8.5.2017 IN C.M.P. NO.2941/17 IN S.T. NO.6366/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE. ANNEXURE XII: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 25.5.2017 IN RESPECT OF THE PETITIONER.** **--2--** **--2--** **Crl.MC.No. 3665 of 2017 ()** **--------------------------** **ANNEXURE XIII: TRUE COPY OF THE PETITION DATED 10.5.2017 FILED ALONG WITH C.M.P.NO.2941/17(ANNEXURE XI)IN S.T.NO.6366/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE.** **ANNEXURE XIV: TRUE COPY OF THE ENVELOPE RETURNED UNSERVED IN RESPECT OF THE 1ST RESPONDENT.** **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No.3665 of 2017 ================== Dated this the 16[th] day of June, 2017. ## O R D E R The petitioner is the sole accused in S.T.No.6366/2010 on the file of the Judicial First Class Magistrate Court-V, Kozhikode, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of a complaint filed by the first respondent herein Chit Company. The amount covered by the dishonoured cheque dated 29.06.2010 is for an amount of Rs.54,500/-. The petitioner had previously approached this Court by filing Crl.M.C.No.4743/2015 with a prayer to quash the impugned complaint in the above said matter, wherein notice was issued to the first respondent Chit Company and in spite of due service of notice on that party, first respondent complainant had not bothered to appear before this Court. This Court had waited for about 2 ½ years to see whether there is any appearance for that party. The main ground taken up by the petitioner in support of his plea for quashing the complaint, was on the basis that more amounts are due from the Chit Company to the petitioner and her husband than the moneys which are owed by the petitioner to the respondent Chit Company and to establish that the petitioner had produced Annexure-II Karar dated 8.3.2013, which was signed by the authorised agent for the first respondent Chit Company, Crl.M.C.No.3665 of 2017 : 2 : acknowledging that after set off, moneys are actually due from the Chit Company to the petitioner and her husband. Since petitioner had already instituted a civil suit as O.S.No.82/2015 before the Sub CourtIA, Kozhikode, for recovery of the above said amount from the Chit Company, the original of Annexure-II Karar dated 8.3.2013 was also produced before the civil court. Since the first respondent did not cooperate with this Court for the adjudication of those issues, this Court could not know whether the first respondent is acknowledging the correctness of Annexure-II agreement. Therefore, this Court had disposed of Crl.M.C.No.4743/2015 as per Annexure-X Order rendered on 10.04.2017, with the following directions: “(i) The non bailable warrant pending against the petitioner issued in this case by the trial court will stand recalled. The petitioner, without any further delay, will personally appear before the trial court and submit necessary application for grant of bail through her Advocate, upon which the trial court will pass appropriate orders therein taking into account the fact that the offence alleged against the petitioner is only a bailable offence. (ii) After grant of bail to the petitioner, it will be open to the petitioner through her counsel to request the trial court to refer both parties to mediation in lieu of Anx.A-II agreement. If the 1[st] respondent is also willing, the trial court will ensure that both parties are referred to the nearest authorised/District Mediation Centre, so that the entire disputes between the parties could be resolved through mediation especially taking into account the aspects now sought to be made out on the basis of Anx.A-II agreement. (iii) If mediation attempts turns out to be successful, then both parties may be permitted to close the matter either by withdrawing the complaint as envisaged in Sec.257 of the Cr.P.C or by compounding the offence as envisaged in Sec.147 of the N.I.Act r/w Sec.320 of the Cr.P.C. If the mediation attempts are not successful, then the trial court will take immediate steps for completion of the trial. Crl.M.C.No.3665 of 2017 : 3 : - (iv) It is also made clear that it will be open to the petitioner to seek exemption under Sec.205 of the Cr.P.C in which case the trial court will consider and pass appropriate orders on the same, in the light of the legal principles well settled in that regard in the decision report in Reddy v. Excel Glasses Ltd. reported in 2010 (3) KLT SN 11 (Case No.14) as well as the judgments in Bhaskar Industries Ltd. v. Dhiwani Denim & Apparel Ltd. reported in AIR 2001 SC 3625 & Ajith Kumar Chakravorthy & ors v. Serampore Municipality reported in 1989 Crl.L.J. 523, etc During trial, it will be open to the petitioner to place reliance on the aspects like Anx.A-II by producing either the original of the same and in case Anx.A-II is in the civil court in connection with the civil suit, the it is for the petitioner to obtain a certified copy of the same for production before the trial court in this case. The trial court will ensure that all earnest efforts are taken to conclude the same without much delay, in case mediation attempts turns out be a failure. Petitioner also apprehends that the agent/power of attorney holder of the 1[st] respondent may not appear before the trial court for early conclusion of the trial. In such a scenario, the trial court will proceed with the complaint in accordance with the provisions of Cr.P.C, if the complainant is persistently defaults in appearing before the trial court. With these observations and directions, the Crl.M.C stands finally disposed of.” 2. Later, the petitioner has filed the present Crl.M.C. and a plea made by the petitioner's counsel that the petitioner is suffering from serious ailment and the complainant is also not co-operating with the expeditious conclusion of the trial and that the petitioner is prepared to pay the entire amount covered by dishonoured cheque in question to the first respondent, with a condition that petitioner should have the liberty to pursue all her claims against the respondent Company in the pending civil suit, etc. 3. Accordingly, this Court had passed an interim order dated 30.05.2017 in this case directing that all further proceedings in the Crl.M.C.No.3665 of 2017 : 4 : trial in this case will stand deferred etc. It was also ordered on 30.05.2017 that the petitioner should deposit the amount of Rs.54,500/- covered by the dishonoured cheque along with interest thereon @ 9% p.a. from the date of cheque (29.06.2010) upto date of deposit, before the trial court concerned. 4. Now, it is reported by Dr.V.N.Sankarjee, learned counsel appearing for the petitioner that the petitioner (accused) has already deposited an amount of Rs.88,604/- which is inclusive of Rs.54,500/along with 9% interest thereon, before the trial court on 12.06.2017. In that regard, the original of the receipt has already been produced by the petitioner for the perusal of this Court. This Court had ordered on 30.05.2017 that the petitioner shall take out urgent notice by special messenger to the first respondent Chit Company and petitioner has taken out the notice and endorsed through special messenger and it has been endorsed by the Registry that notice by special messenger has been duly served on the first respondent. Surprisingly, there is no appearance for the party even in this round of litigation. 5. Heard Sri.Dr.V.N.Sankarjee, learned counsel for the petitioner and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. As stated hereinabove, in spite of due service of notice on R-1, there is no appearance for that party. 6. The Apex Court in the case in Indian Bank Association and Others v. Union of India and Others reported in (2014) 5 SCC Crl.M.C.No.3665 of 2017 : 5 : 590 as held in para.23.3 of the said judgment that the trial court may indicate in the summons for offences involving Sec.138 of the NI Act that the accused makes an application of compounding offence in the first hearing of the case and if such an application is made, the court may pass appropriate orders expeditiously etc. Therefore, all efforts should be taken by the trial court, the appellate court, the revisional court etc. in matters involving offences under Sec.138 of the NI Act to facilitate the settlement between the parties. In the instant case, the petitioner has agitated the issue since June 2015 by filing of the earlier petition as per Crl.M.C.No.4743/2015 and the first respondent complainant did not co-operate with the due resolution of the issues in that case which led to the final disposal of the matter on 10.04.2017. Even now, the first respondent has not bothered to appear before this Court in spite of due service of notice on that party and in spite of the fact that this Court had noted the offer made by the petitioner about her willingness to pay off the amount already due under the dishonoured cheque. Even though the petitioner has sought reasonable and fair approach in this matter, the first respondent Chit Company is not even bothered to appear before this Court even to accept the moneys deposited by the accused. Petitioner has made out a strong case on the basis of Annexure-II Karar dated 8.3.2013, wherein the respondent Chit Company has conceded that more moneys are owed to the petitioner's husband. Both the petitioner and Crl.M.C.No.3665 of 2017 : 6 : her husband were subscribers of various chits run by the Chit Company. Petitioner has produced medical certificate to show that she is suffering from epilepsy. Therefore this Court is of the view that any further prolongation of the trial in spite of the reasonable offer made by the petitioner would amount to causing grave harassment and injustice to the petitioner. This Court is of the view that payment for the principal amount covered by the cheque to the complainant Company will be more than sufficient in the interest of justice. Since the first respondent has shown such a recalcitrant attitude in both the two rounds of litigations, this Court is constrained to take a view that such respondent Chit Company need not be given any interest on the principal amount. Accordingly, this Court is inclined to quash the proceedings in the complaint which led to the institution of S.T.No.6366/2010, pending before the trial court. In the light of these aspects, the following directions and orders are issued: - (i) The impugned complaint proceedings pending against the petitioner in S.T.No.6366/2010 on the file of the Judicial First Class Magistrate Court-V, Kozhikode will stand quashed. - (ii) Out of the deposited amount of Rs.88,604/-, the trial court shall take immediate steps to release an amount of Rs.54,500/-(Rupees Fiftyfour Thousand and Five Hundred only) to the complainant on an application in that regard made by the parties. The balance amount of Rs.34,104/-, (viz, Rs.88,604–54,500) shall be released to the petitioner on an application on that regard made on her behalf. - (iii) The above said payments made by the petitioner shall be without prejudice to the right of the petitioner and her husband, in the pending civil suit filed against the first respondent Company in the matter of recovery of moneys allegedly due to them and it is also Crl.M.C.No.3665 of 2017 : 7 : ordered that subject to the matter in issue in that suit, the petitioner will be at liberty to raise the contention before the said court that the above said money that is now paid by the petitioner to the complainant should also be paid back to the petitioner or her husband etc. All such issues pending before the civil court are to be decided independently by the civil court. - (iv) Petitioner shall produce the certified copy of this order before the trial court for information. ## With these observations and directions, the Criminal Miscellaneous Case is finally disposed of. ## Sd/- ## ALEXANDER THOMAS, JUDGE Bb/19/06/2017 _[True copy]_ _P.A to Judge_