Disposed

M.K.Sukumar @ Suku Menon v. Yasir

Kerala HC1 Oct 2012Crl.MC/1620/2012

Case brief

AI extract

What is this about?

The Kerala High Court held that challenges to a Section 138 NI Act prosecution cannot be resolved under Section 482 CrPC as they involve disputed facts. The court directed the Magistrate to consider an application for exemptions for aged petitioners settled in Chennai.

What did the court decide?

Challenges to prosecution dismissed as involving disputed facts; direction to Magistrate to consider application under Section 205 CrPC for exemption based on age and residence.

M.K.Sukumar @ Suku Menon Vs Yasir — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

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MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934

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Crl.MC.No. 1620 of 2012 (B)

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-------------------------IN ST.191/2012 of J.M.F.C.-II,PERINTHALMANNA

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PETITIONERS/ACCUSED:-

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1. M.K.SUKUMAR @ SUKU MENON, AGED ABOUT 70 YEARS, S/O.MADAV KURUP, PROPRIETOR, M/S.ASWATHY ARTS, FILM MAKERS NO.1363/14, VELLAR COLONY, 7TH STREET, 1ST BLOCK, ANNA NAGAR WEST, CHENNAI-40, TAMIL NADU.

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2. MRS.RUPAVATHI SUKUMAR, AGED ABOUT 60 YEARS, W/O.M.K.SUKUMAR @ SUKU MENON, PROPRIETOR, M/S.ASWATHY ARTS, FILM MAKERS NO.1363/14, VELLAR COLONY, 7TH STREET, 1ST BLOCK, ANNA NAGAR WEST, CHENNAI-40, TAMIL NADU.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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RESPONDENTS / COMPLAINANT AND STATE : -

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1. YASIR, AGED ABOUT 40 YEARS, S/O.ABDUL KHADER, KARUVATTIL HOUSE, VADAKKANGARA POST, MANAKADA, MALAPPURAM DISTICT- 679324.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R1 BY ADV. SRI.C.M.KAMMAPPU

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R2 BY PUBLIC PROSECUTOR SMT. R. REMA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1620 of 2012 (B)

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APPENDIX

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PETITIONERS' ANNEXURES :

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ANNEXURE A :	TRUE COPY OF THE COMPLAINT DATED 29.12.2011 FILED BY THE 1^stRESPONDENT AGAINST THE 1^stPETITIONER AND 2^nd PETITIONER.
ANNEXURE B :	TRUE COPY OF THE DOCUMENT DATED 21.01.2011 ISSUED BY THE 1^stRESPONDENT.
ANNEXURE C :	TRUE COPY OF THE CHEQUES COUNTER FOIL ISSUED BY THE STATE BANK OF INDIA DATED 2009.
ANNEXURE D :	TRUE COPY OF THE LEGAL NOTICE DATED 11.10.2011 ISSUED BY THE 1^stPETITIONER.
ANNEXURE E :	TRUE COPY OF THE REPLY NOTICE DATED 24.10.2011 ISSUED BY THE 1^stRESPONDENT TO THE PETITIONER'S ADVOCATE.
ANNEXURE F :	TRUE COPY OF THE LEGAL NOTICE ISSUED BY THE 1^st RESPONDENT TO THE 2^ndPETITIONER DATED 25.11.11.
ANNEXURE G :	TRUE COPY OF THE LEGAL NOTICE ISSUED BY THE 1^st RESPONDENT TO THE 1^stPETITIONER DATED 25.11.11.
ANNEXURE H :	TRUE COPY OF THE REPLY NOTICE DATED 02.12.2011 SEND BY THE 1^stPETITIONER.
ANNEXURE I :	TRUE COPY OF THE REPLY NOTICE DATED 02.12.11 SEND BY THE 2^ndPETITIONER.
ANNEXURE J :	TRUE COPY OF THE LEGAL NOTICE ISSUED BY THE 1^st PETITIONER TO PANKAJAKSHAN DATED 28.07.2011.
ANNEXURE K :	TRUE COPY OF THE REPLY NOTICE DATED 16.09.2011 ISSUED BY PANKAJAKSHAN.
ANNEXURE L :	TRUE COPY OF THE REPLY NOTICE DATED 11.10.2011 ISSUED BY THE 2^ndPETITIONER.
ANNEXURE M :	TRUE COPY OF THE REPLY NOTICE DATED 11.10.2011 ISSUED BY THE SON OF THE 1^stAND 2^ndPETITIONER.
ANNEXURE N :	TRUE COPY OF THE MEDICAL CERTIFICATE DATED 01.04.2012 ISSUED BY THE KERALA AYURVEDIC HEALTH CENTRE.

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RESPONDENTS' ANNEXURES : NIL.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

S.S.SATHEESACHANDRAN,J.

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Crl.M.C. NO. 1620 of 2012

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Dated this the 01^st day of October, 2012

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ORDER

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Petitioners are the accused in a cheque case involving the offence under Section 138 of the Negotiable Instruments Act, for short the 'N.I. Act'. First petitioner is stated to be aged 70 years and the second petitioner, his wife, is a school Teacher. They are being prosecuted on the complaint filed by the first respondent for the aforesaid offence without just cause, and in fact the petitioners had issued four legal notices to the complainant prior to the presentation of the cheque before the bank, is the submission of the learned counsel to contend that the criminal proceedings emanating from the complaint of the first respondent/complainant are an abuse of process of the court. Learned counsel for petitioner adverting to the notice issued and also other circumstances involved in the case

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vehemently contended that prosecution of the petitioners on

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Crl.M.C. NO. 1620 of 2012 2

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the basis of the dishonored cheque by the respondent/complainant suffers from serious legal infirmities and it is liable to be quashed at the threshold. On the other hand the learned counsel for the first respondent/complainant contended that cognizance of the offence taken on the complaint has to reach its logical conclusion and if at all the petitioners have got any tenable objection to terminate the proceedings, it can be canvassed before the magistrate, and this court in exercise of its inherent jurisdiction cannot be called upon to decide questions requiring adjudication over disputed facts involved in the case. Section 482 of the Code applies only for giving effect to orders under the Code or to prevent abuse of process of the court or to secure ends of justice. I find that challenges projected by the petitioners cannot be resolved in exercise of the powers of this court under Section 482 of the Code when it calls for decision on disputed questions of facts

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Crl.M.C. NO. 1620 of 2012

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and not on any question of law alone. Petitioners are free to canvass whatever challenges or defences available to them before the magistrate to resist the prosecution from the complaint.

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At this stage, the learned counsel for petitioner canvassing the age of the first petitioner and also the employment of the second petitioner, and that both of them are permanently settled at Chennai, urged for giving a direction to the magistrate to grant them permanent exemption in the case and be represented by their counsel in the proceedings. Considering the nature of the offence imputed, I find no reason, why, the petitioners should not be granted such exemption, but, of course subject to such conditions as may be imposed by the magistrate to secure their presence, if needed for trial of the case. Petitioners have to move an application before the magistrate under Section 205 of the Code of Criminal Procedure to seek for

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Crl.M.C. NO. 1620 of 2012

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exemption stating the grounds thereof, and if any such application is moved, the magistrate shall take note of the observations made above and pass appropriate orders imposing such conditions as may be required for having a fair trial of the case.

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Crl.M.C. is disposed of.

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S.S.SATHEESACHANDRAN JUDGE.

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DMR /-

M.K.Sukumar @ Suku Menon v. Yasir

Case brief

What is this about?

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M.K.Sukumar @ Suku Menon v. Yasir

Case brief

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