Disposed

K.P.Anilkumar v. Sree Gokulam Chits & Finance Company (P) Ltd.

Kerala HC8 Nov 2017Crl.MC/7461/2017

Case brief

AI extract

What is this about?

Petitioner accused in cheque bouncing case wrote a Criminal Miscellaneous application seeking the quashing of the complaint alleging false transaction details. The High Court held this was a fit case for mediation and directed the trial court to refer parties to a mediation centre with a two-month deadline. If unsuccessful, the trial court would try the merits, considering personal exemption appli

What did the court decide?

Directed the trial court to refer parties to the nearest mediation centre within two months and settle the dispute or file an application for withdrawal of the complaint or compounding of the offence.

K.P.Anilkumar Vs Sree Gokulam Chits & Finance Company (P) Ltd. — Cheque Dishonour | Kerala HC (2017)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939

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Crl.MC.No. 7461 of 2017 ()

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--------------------------ST. NO.2100/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT (TEMPORARY), SASTHAMCOTTA, KOLLAM.

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PETITIONER/ACCUSED :

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K.P. ANIL KUMAR, S/O. PARAMESWARAN PILLAI, AGED 47 YEARS, KAVIL VEEDU, THURUTHIKKARA P.O., KUNNATHUR, SASTHAMCOTTAH, KOLLAM.

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BY ADV. SRI.B.MOHANLAL.

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RESPONDENTS/COMPLAINANT :

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1. SREE GOKULAM CHITS & FINANCE COMPANY (P) LIMITED, CORPORATE OFFICE AT SREE GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENNAI-600 024, REPRESENTED BY ITS AUTHORIZED OFFICER, MR. BHADRAN, S/O. RAGHAVAN, THONDATHARAYIL HOUSE, KOZHIKKODU MEKKU, AYANIVELIKULANGARA VILLAGE, KARNAGAPPALLY TALUK, KOLLAM DISTRICT, WHO IS THE ASSISTANT BUSINESS MANAGER OF THE COMPANY.

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

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R1 BY ADV. SMT.N. SUDHA.

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R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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Crl.MC.No. 7461 of 2017

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A1	THE TRUE COPY OF THE LEGAL NOTICE DATED 28.12.2012 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENT ACT.
ANNEXURE A2	THE TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT (TEMPORARY), SASTHAMCOTTAH, KOLLAM.
ANNEXURE A3	THE TRUE COPY OF THE DD NO.229802 FOR`50,000/- OBTAINED FROM CANARA BANK DATED 24.06.2011 REMITTED BY THE PETITIONER.
ANNEXURE A4	THE TRUE COPY OF THE RECEIPT DATED 24.06.2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
ANNEXURE A5	THE TRUE COPY OF THE REPLY DATED 28.01.2013 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ALEXANDER THOMAS, J.

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==================

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Crl.M.C.No. 7461 of 2017

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==================

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Dated this the 8^th day of November, 2017 O R D E R

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The petitioner has been arrayed as accused for offence punishable under Sec.138 of the N.I. Act in the impugned Anx. A-2 complaint, which led to the instant S.T.No.2100/2016 on the file of the Judicial First Class Magistrate's Court (Temporary), Sasthamkottah, Kollam district, instituted on the basis of the complaint filed by the 1^st respondent chit company. According to the averments in the impugned Anx.A-2 complaint, the petitioner was a subscriber, who had entered into a chit transaction with the complainant chit company in its Bharanikkavu branch and after receiving the auctioned amount, the petitioner, as subscriber, had defaulted in payments and when notice was issued, the petitioner accused had voluntarily executed the cheque in question for Rs.91,835/-, in discharge of the subsisting liability as on the date of issuance of the cheque and that the cheque when presented, resulted in dishonour on the ground of insufficiency of funds and that the petitioner has not bothered to pay the amounts, in spite of due service of statutory demand notice under Sec. 138 proviso (b) of the N.I. Act and that the petitioner has thus allegedly committed offence punishable under Sec. 138 of the N.I. Act, etc.

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The petitioner has been served with summons in the abovesaid complaint and has entered appearance through his counsel. According to

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Crl.M.C.7461/17 - : 2 :-

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the petitioner, he has never voluntarily executed the abovesaid cheque in question and that he never had any transaction with the Bharanikkavu branch of the complainant chit company and that the only chit transaction that the accused had with the complainant company was through their Charummude branch and that the petitioner has already paid as Anx. A-4 receipt dated 24.6.2011 for an amount of Rs.50,000/- in respect of chit transaction with the Bharanikkavu branch, bearing No.G2F-2093/ KDM/02. It is further stated that the chit transaction number referred to Anx. A-4 receipt issued by the Bharanikkavu branch is the same as the one mentioned in the impugned Anx.A-2 complaint and that these aspects itself show the falsity of the very case set up by the complainant that the petitioner's transactions were with the Bharanikkavu branch, etc. Further, it is stated that an amount of Rs.50,000/- covered by Anx.A-4 receipt has not been properly reckoned by the complainant before arriving at the alleged liability figure shown in the cheque in question, etc. It is in the light of these aspects, that the petitioner has filed the instant Crl.M.C. with the prayer to quash the impugned Anx. A-2 complaint.

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Heard Sri.B.Mohan Lal, learned counsel appearing for the petitioner (accused), Smt.N.Sudha, learned counsel appearing for R-1 company (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The abovesaid contentions raised by the petitioner are

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Crl.M.C.7461/17 - : 3 :-

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essentially in the realm of factual contentions, which require adducing of evidence in the trial, for its proper resolution. Therefore, it is not proper for this Court to enter into the correctness or otherwise of these factual contentions. However, taking into account the facts and circumstances of this case, this Court is of the view that this is a fit case, in which, the trial court should ensure that the parties are referred to the nearest mediation centre for resolving their disputes. Learned Advocates appearing for both sides agreed to the abovesaid suggestion of this Court and submit that their respective parties are willing to take recourse to the meditory efforts through the mediation centre, which is nearest to the trial court concerned. In the light of these aspects, it is ordered that the petitioner (accused) and the authorised officer of the 1^st respondent (complainant company) along with their respective Advocates should appear before the trial court concerned at 11 a.m. on 30.11.2017, on which day, the trial court will ensure that both the parties are referred to the nearest mediation centre for resolution of their disputes and minimum of 2 months' time should be given to the parties for resolving their disputes through the mediation centre. The mediator should endeavor to complete the mediation process without much delay, at any rate, within a period of two months from the date of appearance of the parties before the mediator. If the mediation process is successful and in case the petitioner wants some time for paying the agreed amounts, if any, then the trial court should give reasonable time

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Crl.M.C.7461/17 - : 4 :-

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to the petitioner to ensure that the terms and conditions of the mediation agreement are complied with. If the mediation process is thus successful, then the complainant could be at liberty to file an appropriate application for withdrawal of the complaint in terms of Sec.257 of the Cr.P.C. 1973 or in the alternative, the parties will at liberty to file appropriate application for joint compromise and for compounding the offence as envisaged in Sec. 147 of the N.I. Act, read with Sec.320 of the Cr.P.C. If the mediation process is not successful, then the trial court would proceed with the merits of the matter, in accordance with law. In such eventuality, the petitioner will be at liberty to file appropriate application seeking personal exemption by virtue of the enabling powers conferred under Sec. 205 of the Cr.P.C., upon which, the trial court will render a considered decision thereon taking into account the legal principles laid down by this Court in Reddy v. Excel Glasses Ltd. reported in 2010 KHC 548 = 2010 (3) KLT SN 11 (C.No.14) as well as the decisions of the Apex Court reported in AIR 2001 SC 3625 [ Bhaskar Industries Ltd. v. Dhiwani Denim & Apparel Ltd .], 1989 Crl.L.J. 523 [ Ajith Kumar Chakravorty & Ors. v. Serampore Municipality ], etc.

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With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

K.P.Anilkumar v. Sree Gokulam Chits & Finance Company (P) Ltd.

Case brief

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K.P.Anilkumar v. Sree Gokulam Chits & Finance Company (P) Ltd.

Case brief

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