Dismissed

Remya v. Saradhi Motor Finance

Kerala HC21 Mar 2016Crl.MC/4159/2013

Case brief

AI extract

What is this about?

The Court dismissed a petitioner's petition under Section 482 CrPC seeking an injunction against the Magistrate proceeding with a plea bargaining application. It held that the Magistrate had only to comply with the procedural requirement of examining the accused *in camera* to verify voluntariness before proceeding further.

What did the court decide?

The reliefs sought in the petition (direction to Magistrate not to proceed with plea bargaining) were refused. A provision was made for bail/warrant recall within 3 weeks.

Remya Vs Saradhi Motor Finance — Cheque Dishonour | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938

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Crl.MC.No. 4159 of 2013

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ST 1864/2012 of J.M.F.C.,CHANGANACHERRY

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PETITIONER(S)/ACCUSED:

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REMYA

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W/O.SURESH KUMAR, MANACKAPARAMBIL HOUSE, MANJOOR P.O. KURUPUMTHARA, KOTTAYAM.

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BY ADV. SRI.T.A.PRAKASH

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RESPONDENT(S):

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SARADHI MOTOR FINANCE HAVING ITS REGISTERED OFFICE AT BUILDING NO.49 UA SAFAA COMPLEX, PERUNNA P.O., CHANGANACHERRY REPRESENTED BY ITS MANAGING PARTNER

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MR.KISHORE M BALAKRISHNAN

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RESIDING AT MUTTITHARA HOUSE, KURISSUMMOODU P.O. CHANGANACHERRY-686 101.

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STATE OF KERALA, REPRRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SMT.SARITHA THOMAS

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BY PUBLIC PROSECUTOR SRI. BABY THOMAS

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4159 of 2013

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE-A1.CERTIFIED COPY OF THE PLEA BARGAINING PETITION SUBMITTED BY THE PETITIONER'S COUNSEL IN ST NO.1864/2012.

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ANNEXURE-A2.TRUE COPY OF LETTER DATED 25/7/2013 ISSUED BY HER COUNSEL RELINQUISING HER VAKALATH.

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//True Copy//

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P.S.To Judge

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RAJA VIJAYARAGHAVAN.V., J

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- - - - Crl.M.C.4159 of 2013

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- - - - Dated 21^st March, 2016

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ORDER

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1.The instant petition is preferred under Section 482 of the Code of Criminal Procedure, by the petitioner, who is the accused in S.T.No.1864 of 2012 on the file of the Judicial Magistrate of First Class-I, Changanassery.

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2.The petitioner is the sole accused in the aforesaid case. The said proceedings was instituted based on a complaint by the 1^st respondent herein for offence punishable under Section 138 of the Negotiable Instruments Act.

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3.The gist of the allegation is that a sum of Rs.72,000/- is due from the accused and in discharge of the said amount, a cheque was issued which, when presented, was dishonoured. On 21.1.2013, the application for Plea bargaining was

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Crl.M.C.4159/13

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submitted by the learned counsel appearing for the accused without her concurrence. According to her, she never agreed to settle the matter by paying the cheque amount. The grievance of the petitioner is that the Magistrate will proceed with the Plea bargaining application and this would work out injustice to the petitioner. It was in the said circumstances that the instant petition was filed seeking a direction to the learned Magistrate not to proceed with the application.

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4.I have heard the learned counsel appearing for the petitioner as well as the 1^st respondent and the learned Public Prosecutor.

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5.I am of the view that the apprehension expressed by the petitioner that the Magistrate will proceed with the Plea bargaining application without ascertaining the voluntary nature of her plea is without any basis.

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Crl.M.C.4159/13

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6.Section 265 (B) of the Code reads as under:-

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“Application for plea bargaining - (1). A person accused of an offence may file application for plea bargaining in the court in which such offence is pending for trial.

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(2). The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding, the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.

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(3). After receiving the application under sub-section (1) the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.

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Crl.M.C.4159/13

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(4). When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3) , the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-

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(a)- the Court is satisfied that the application has been filed by the accused voluntarily it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the acused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case.

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(b). the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been

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Crl.M.C.4159/13

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filed under sub-section (1).

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7.Section 265 B (3) provides that after filing of the application for plea bargaining by the accused, the court is to issue a notice to the public prosecutor and the complainant and also to direct the accused to be present on the date fixed for appearance. Thereafter the provision mandates the court to examine the accused in camera , in the absence of the other parties to satisfy itself that the accused had filed the application voluntarily. On being satisfied that the application has been filed voluntarily, the Court has to proceed to provide time to the public prosecutor or the complainant, as the case may be , to work out a mutually satisfactory disposition of the case. If the court finds that the application has been filed involuntarily by the accused, or he has been previously convicted by a court in a case in

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Crl.M.C.4159/13

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which he had been charged with the same offence, the court shall proceed further in accordance with the provisions of the Code from the stage of filing of the application under sub section (1) of the Section 265 (B) of the Code.

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8.In view of the above, I am of the view that the submission of the learned Counsel that the Magistrate would proceed further on the basis of Annexure-1 Plea bargaining application without compliance of Section 265B (3) and (4), is misconceived.

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9.I am of the considered view that the reliefs sought for by the petitioner in this petition cannot be granted. Crl.M.C is accordingly dismissed.

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10.It is however, submitted that non bailable warrant is pending against the petitioner. If the petitioner files appropriate application for recalling the warrant and for bail within 3 weeks from the date of receipt

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Crl.M.C.4159/13

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of a copy of this order, the same shall be considered by the learned Magistrate and appropriate orders be passed on the same day itself, notwithstanding the pendancy of the warrant against the petitioner.

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Sd/-

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RAJA VIJAYARAGHAVAN.V. Judge

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Mrcs/21.3.2016

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//True Copy//

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P.S.To Judge

Remya v. Saradhi Motor Finance

Case brief

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Remya v. Saradhi Motor Finance

Case brief

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