Kerala High Court
Gopi vs Thomas on 30 November, 2006
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4220 of 2006()
1. GOPI, S/O.KUTTAN,
... Petitioner
Vs
1. THOMAS, S/O.ULAHANNAN,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.UNNIKRISHNAN.V.ALAPATT
For Respondent :SRI.CIBI THOMAS
The Hon'ble MR. Justice K.T.SANKARAN
Dated :30/11/2006
O R D E R
K.T. SANKARAN, J.
...................................................................................
CRL. R.P. 4220 OF 2006
...................................................................................
Dated this the 30th November , 2006
O R D E R
The petitioner was convicted for the offence under section 138 of
the Negotiable Instruments Act and he was sentenced to undergo simple
imprisonment for a period of three months . He was also directed to pay
compensation of Rs.60,000/- to the complainant under section 357(3) of
the Code of Criminal Procedure . On appeal by the accused, the appellate
court confirmed the conviction and sentence
2. Crl.M.A. No. 12200 of 2006 was filed by the petitioner/accused
and the first respondent/complainant, stating that the parties have amicably
settled the dispute. That application was allowed.
In the result, Crl. Revision Petition is allowed. The conviction and
sentence imposed on the petitioner are set aside. The petitioner is
acquitted under section 320(8) of the Code of Criminal Procedure
K.T. SANKARAN,
JUDGE.
lk
CRL.R.P. 4200 OF 2006
2
K.T. SANKARAN, J.
...................................................................................
CRL. M.A.NO. 12200 OF 2006 IN
CRL. R.P. 4220 OF 2006
...................................................................................
Dated this the 30th November , 2006
O R D E R
This is an application filed under section 147 of the Negotiable
Instruments Act seeking permission to compound the offence under section
138 of the Negotiable Instruments Act. It is stated in the application that the
parties have amicably settled the dispute. The application is signed by the
complainant as well as the accused and their counsel. The application is
allowed.
K.T. SANKARAN,
JUDGE.
lk
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+WP(C) No. 32153 of 2006(C)
#1. MOIDEEN SHAH, S/O. MARAKKAR SHAH,
... Petitioner
Vs
$1. DR.JOSEPH MATHEW,
... Respondent
! For Petitioner :SRI.JOSHI N.THOMAS
^ For Respondent : No Appearance
*Coram
The Hon'ble MR. Justice R.BASANT
% Dated :05/12/2006
: O R D E R
R.BASANT, J.
------------------------------------ W.P.C.NO.32153 OF 2006
------------------------------------ Dated this the 5th day of December, 2006.
JUDGMENT When this petition came up for hearing, the learned counsel for the petitioner was pointedly requested to explain how in the light of Section 340 Cr.P.C without filing an appeal under Section 341 Cr.P.C, the petitioner can seek to invoke the jurisdiction of this Court under Article 226/227 of the Constitution. The learned counsel for the petitioner submits that appeal under Section 341 Cr.P.C is possible only when an application to make a complaint under Section 340 Cr.P.C has been rejected refusing to make a complaint. According to the petitioner, such refusal, can be done only after conducting enquiry as contemplated under Section 340 Cr.P.C. In as much as no such completed enquiry has been conducted, it cannot be held to be a refusal to make a complaint. This is, in fact, a refusal to conduct enquiry and therefore the proper remedy is not an appeal under Section 341 Cr.P.C, it is submitted.
2. I am unable to agree with the learned counsel for the petitioner. The order impugned, copy of which is produced as Ext.P6, clearly shows that the learned Magistrate felt after W.P.C.NO.32153 OF 2006 2 examining CW1-the petitioner, that no further enquiry need be proceeded with and on the available materials, the prayer to make a complaint under Section 340 Cr.P.C can be dismissed. The impugned order is therefore one which is squarely appealable under Section 341 Cr.P.C. The fact that sufficient enquiry has not been conducted before passing the impugned order is also a ground which can be taken in a properly instituted appeal under Section 341 Cr.P.C.
3. This Writ Petition must in these circumstances be held to be not maintainable as the petitioner has a remedy under the specific provisions of the Code of Criminal Procedure to challenge the impugned order.
4. This Writ Petition is, in these circumstances, dismissed. I may hasten to observe that the dismissal of this petition will not in any way fetter the rights of the petitioner to prefer an appeal under Section 341 Cr.P.C in accordance with law.
5. Hand over a copy of this order to the learned counsel for the petitioner today itself.
(R.BASANT, JUDGE) rtr/ W.P.C.NO.32153 OF 2006 3