Kerala High Court
Sajitha vs Shree Thiruvangad Chits Pvt. Ltd on 9 September, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939
Crl.MC.No. 4743 of 2015 ()
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ST. NO.6366/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -V, KOZHIKODE.
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PETITIONER/ACCUSED:
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SAJITHA, W/O.SHAHUL HAMEED,
AGED 34, M.P.HOUSE, VAIDYARANGADI,
KOZHIKODE DISTRICT-673 633.
BY ADVS.DR.V.N.SANKARJEE,
SRI.V.N.MADHUSUDANAN,
SRI.S.SIDHARDHAN,
SMT.C.K.LEKHAMMA,
SMT.R.UDAYAJYOTHI,
SRI.PRATHAP.S.R.K.,
SMT.M.SUSEELA.
RESPONDENTS/COMPLAINANT & STATE:
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1. SHREE THIRUVANGAD CHITS PVT. LTD.
IIND FLOOR, MANUPLAZA, AIRPORT ROAD,
RAMANATTUKARA P.O, CALICUT-673 633,
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-682 031.
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 10-04-2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
rs.
Crl.MC.No. 4743 of 2015
APPENDIX
PETITIONER'S ANNEXURES:-
ANNX.I- TRUE COPY OF THE COMPLAINT DATED 09.09.2010 LODGED BY
THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-V, KOZHIKODE.
ANNX.II - TRUE COPY OF THE KARAR DATED 08.03.2013 (TOGETHER WITH
TYPEWRITTEN COPY) EXECUTED BY THE 1ST RESPONDENT.
ANNX.III- TRUE COPY OF THE COMPLAINT DATED 22.03.2013 LODGED
BEFORE THE CIRCLE INSPECTOR OF POLICE, NALLALAM.
ANNX.IV - TRUE COPY OF THE FIR DATED 01.06.2013 REGISTERED BY
THE POLICE.
ANNX.V - TRUE COPY OF THE INFORMATION PROVIDED BY THE
CIRCLE INSPECTOR OF POLICE, CHERUVANNOOR.
ANNX.VI - TRUE COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI
DAILY DATED 11.06.2013.
ANNX.VII - TRUE COPY OF THE PLAINT DATED 15.07.2015 IN
OS NO.82/2015 OF THE SUB COURT-IA, KOZHIKODE.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
ALEXANDER THOMAS, J.
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Crl.M.C.No.4743 Of 2015
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Dated this the 10th day of April, 2017.
O R D E R
It is averred that the petitioner and her husband are subscribers of 17 chits (4 by the petitioner and 13 by her husband) conducted by the 1st respondent chit company as a foreman of the chits. That out of these, 15 chitties were matured and the petitioner and her husband subscribed the entire instalments therein. However no amounts involved in any of the 15 chitties or any portion thereof have been paid to the petitioner and her husband by the 1st respondent. 2 chits in the name of the petitioner were prized by the petitioner and requested the chit company to adjust this amount out of the huge sum due to her and her husband from other 15 matured chitties. But, without acceding to this request, the 1st respondent company, by fabricating one of the signed blank cheque issued by the petitioner as security for that chitty transaction, has filed Anx.A-I complaint against the petitioner alleging offence punishable under Sec.138 of the Negotiable Instruments Act, it is alleged. Subsequently, the 1st respondent represented by its ::2::
Crl.M.C.No.4743 Of 2015 Managing Director executed Anx.A-II Karar in favour of the petitioner's husband undertaking that Rs.14,38,165/- due to the petitioner and her husband from the 15 chitties deducted by Rs.54,500/- involved in Anx.A-1 complaint shall be paid to him and shall return all signed blank cheques (85 in cumber) to the petitioner and her husband. That immediately after Anx.A-II Karar, the 1st respondent officials have absconded after deceiving and defrauding several subscribers including the petitioner and her husband. As per Anxs.A-III and A-IV, the police registered Crime against the 1st respondent company and its officials and in the course of investigation police has closed and sealed the 1st respondent's office. The petitioner has also instituted Anx.A-VII suit for recovery of Rs.17,88,598/-. That though the 1st respondent and its officials are absconding, Anx.A-I complaint continues to be pending though none is appearing for the 1st respondent. It is also submitted that the petitioner is suffering from epilepsy and her disease gets aggravated whenever she sees advocates, policemen, etc., in robes/uniform in court and thus the petitioner-complainant could not appear before the court below and for this reason non bailable warrant is pending against her. It is submitted that the pendency of Anx.A-1 ::3::
Crl.M.C.No.4743 Of 2015 complaint is a sheer abuse of the process of the court and it is liable to be quashed and it is accordingly, the petitioner has filed the instant Crl.M.C with the prayer for quashing the impugned Anx.A-I complaint which has led to the institution of S.T.No.6366/2010 on the file of the Judicial First Class Magistrate Court-V, Kozhikode.
2. Though notice was issued to R-1 there is no appearance for that party. Heard Dr.V.N.Sankarjee, learned counsel appearing for the petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
3. The sheet anchor of the petitioner's contention is based on Anx.A-2 agreement between the parties. Anx.A-2 agreement is said to have been executed between the petitioner's husband and the Managing Director of the 1st respondent company. It is the case of the petitioner that in Anx.A-2 agreement, it has been undertaken by the 1st respondent company that Rs.14,38,165/- is due to the petitioner and her husband from the 15 chitties deducted by Rs.54,500/- involved in Anx.A-1 complaint and that the said amount shall be paid to the petitioner's husband by the 1st respondent company and that the 1st respondent will also return the signed blank cheques (85 in numbers) ::4::
Crl.M.C.No.4743 Of 2015 to the petitioner and her husband. It is also stated that thereafter, the 1st respondent company officials have absconded due to the pendency of various criminal cases registered against them by the police. In spite of due service of notice on R-1, there is no appearance for that party. Therefore, this Court is not in a position to ascertain the correctness or otherwise of Anx.A-II agreement. The learned Magistrate has also furnished a report dated 25.3.2017, wherein it is stated that the complainant is being properly represented before the trial court and that since the matter is stayed by this Court, the trail court does not insist for the presence of the complainant and the case was lastly posted on 7.4.2017 awaiting report of the stay order passed by this Court. It is also stated that the accused has not so far appeared before the trial court. The learned Prosecutor was also directed to get instruction from the Investigating Officer, who was concerned with the various crimes registered against the 1st respondent company. A statement has also been filed by the Sub Inspector of Police, Feroke Police Station, wherein it is stated that on 1.6.2013 a case has been registered at Feroke Police Station as Crime No.242/2013 under Sec.420 r/w 34 IPC on the petition of Sri.P. Baburaj, alleging offence of cheating against the Director of the ::5::
Crl.M.C.No.4743 Of 2015 1st respondent company, etc. Later, offence under Sec.4 r/w Sec.76 of the Central Chit Fund Act, 1982, has also been added in that case. It is also submitted that on the completion of the investigation of this case charge sheet was submitted before the Judicial First Class Magistrate Court-V, Kozhikode. Further that as A-1 is absconding, the trial court has received the charge sheet as C.C.No.63/2016 and C.C.No.620/2016. Further it is stated that Sri.E. Gireesh ( who is said to be power of attorney holder of R-1 herein) is an accused (A-6) in the above crime and that on 19.7.2016, the Investigating Office had arrested the said accused and granted bail as per the direction of the Sessions Court, Kozhikode, and as per the records maintained in Feroke Police Station, he is not involved in any other cases. Therefore, the averments of the petitioner that the authorised agent of R-1 company is absconding due to pendency of criminal investigation, does not appear to be fully correct inasmuch as it is stated by the police authorities that Sri.E. Gireesh, though arrested was released on bail, etc. But the stumbling block of the mater remains, as this Court is not in a position to examine about the correctness or otherwise of Anx.A-II agreement as none is appearing before this Court on behalf of R-1 in spite of due ::6::
Crl.M.C.No.4743 Of 2015 service of notice. If the 1st respondent company had appeared before this Court, then this Court had seriously thought of referring the matter to the mediation centre in the light of the averments in Anx.A-II agreement. Therefore, this Court is not in a position to adjudicate the merits of the matter. The factual scenario of the matters are left to be adjudicated by the trial court. Learned counsel appearing for the petitioner has also pointed out that because of the epilepsy decease suffered by the accused, she has faced with the issuance of non bailable warrant. Since the matter has been pending before this Court for the last 2 years and since there is stay in the matter appropriate orders could be passed. Accordingly, the following orders and directions are passed:
(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 1st respondent is also willing, the trial court will ensure that both parties are referred to the nearest authorised/District Mediation ::7::
Crl.M.C.No.4743 Of 2015 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.
(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 reported 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 ::8::
Crl.M.C.No.4743 Of 2015 apprehends that the agent/power of attorney holder of the 1st 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.
ALEXANDER THOMAS, Judge.
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