Petitioner accused filed criminal misc. petition under Cr.P.C. Section 482 to stay proceedings pending civil suit regarding specific performance. Court dismissed petition, holding that the cheque nature must be decided by Magistrate based on evidence.
Petition dismissed with liberty to raise contentions before Magistrate.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.MC.No. 1456 of 2009() ------------------------------------ CC.613/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT,CHALAKUDY*
PETITIONER/ACCUSED
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C.B. ARUN., AGED 29 YEARS, ADVOCATE, S/O.C.G. BALACHANDRAN, CHERTHEDATH HOUSE, KIZHEKKE CHALAKUDY, CHALAKUDY P.O.
BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.M.REVIKRISHNAN.
RESPONDENTS/COMPLAINANT & STATE
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1. DR.K.T. CHACKOCHAN ALIAS KANICHAI THOMAN CHACKOCHAN, AGED 57 YEARS, S/O.THOMAN, KANICHAI HOUSE, VYNTHALA, PALAYAMPARAMBU P.O., REPRESENTED BY HIS POWER HOLDER AGENT AND NEPHEW,SUNNY CHERIAN
AGED 45 YEARS, BUSINESS, S/O.CHERIAN,UKKEN HOUSE, EDAKULAM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. R1 BY ADV. SRI.T.N.MANOJ.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
M.Sasidharan Nambiar, J.
Crl.M.C.No.1456 of 2009
ORDER
Petitioner, the accused in C.C.No.613/2009 on
the file of Judicial First Class Magistrate's Court, Irinjalakuda, filed this petition under Section 482 of Code of Criminal Procedure for a
direction to the learned Magistrate to keep the case pending till the disposal of O.S.No.97/2009 on the file of Sub Court, Irinjalakuda. First respondent is the complainant. First respondent
lodged Annexure-A complaint alleging that petitioner committed an offence under Section 138
of Negotiable Instruments Act. It was taken cognizance by the learned Magistrate.
petitioner, along with Vipin Lonappan, the accused in C.C.No.612/2009, filed O.S.No.97/2009 before Sub
Court, Irinjalakuda seeking specific performance of the agreement for sale against first respondent and
CRMC 1456/09 2
the question whether the dishonoured cheuqe involved in the case was issued towards part payment of the agreement for sale is to be decided in O.S.No.97/2009 and in such circumstances, a direction is to be issued to the learned Magistrate to keep C.C.No.613/2009 pending till the disposal of O.S.No.97/2009. The accused in C.C.No.612/2009, the co-plaintiff in O.S.No.97/2009, filed Crl.M.C. No.1457/2009 before this Court seeking the very same relief. By order dated 13.8.2010, that petition was dismissed with the observation that it is for the Magistrate to examine how far an offence under Section 138 of Negotiable Instruments Act could be sustained, when the cheque involved is alleged to have been issued towards part payment of the sale consideration in respect of an agreement for sale and it is for the learned Magistrate to decide.
In the light of the said decision, petition is dismissed granting liberty to the petitioner to
CRMC 1456/09 3
raise all the contentions raised herein before the learned Magistrate. The question whether the dishonoured cheque was issued towards part payment of the sale consideration under an agreement for sale and whether it would attract an offence under Section 138 of Negotiable Instruments Act are all matters to be decided by the learned Magistrate based on the evidence to be recorded.
4th October, 2010 tkv
(M.Sasidharan Nambiar, Judge)
2 issues framed by the court
Whether the cheque dishonour case should await the outcome of the civil specific performance suit regarding part payment of sale consideration.
Whether Section 138 of Negotiable Instruments Act is attracted when the cheque was allegedly issued for part payment of an agreement for sale.
2 provisions across 2 enactments
C.B. ARUN.
DR.K.T. CHACKOCHAN
STATE OF KERALA
M SASIDHARAN NAMBIAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
