Allowed

Afsal Jamal v. State of Kerala

Kerala HC22 Mar 2023OP(Crl.)/28/2023

Case brief

AI extract

What is this about?

This court restored the original complaint under Section 138 of the N.I. Act to the trial court after dismissing a petition filed by the complainant seeking recovery of dues from the accused following a failed mediation agreement.

What did the court decide?

The original petition is disposed of by restoring S.T No.255/2019 to the files of the Chief Judicial Magistrate Court and directing the Magistrate to proceed with the matter.

Afsal Jamal Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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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 V.G.ARUN

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WEDNESDAY, THE 22ND DAY OF MARCH 2023 / 1ST CHAITHRA, 1945

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OP(CRL.) NO. 28 OF 2023

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AGAINST THE ORDER/JUDGMENT ST 255/2019 OF CHIEF JUDICIAL
MAGISTRATE ,THODUPUZHA

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PETITIONER/COMPLAINANT:

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AFSAL JAMAL , AGED 47 YEARS
PARTNER OF INDIAN HARDWARE'S, THODUPUZHA, VEZHAPILLIL HOUSE,
KANJIRAMATTOM,THODUPUZHA P.O, THODUPUZHA VILLAGE,THODUPUZHA
TALUK, IDUKKI DISTRICT PIN: 685584, PIN - 685584
BY ADVS.
BOBBY GEORGE
JOY C. PAUL
ELDHOSE JOY
BABY SIMON
REEJO JOHNSON
NOBLE GEORGE

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RESPONDENT/STATE & ACCUSED:

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2NOBY KRISHNAN, AGED 45 YEARS
PROPRIETOR OF NOBY BUILDERS AND DEVELOPERS, PUTHENMAKKAL
HOUSE, KOLANI PO, THODUPUZHA VILLAGE , THODUPUZHA TALUK,
IDUKKI DISTRICT. PIN-685608, PIN - 685608
BY ADVS.
SAIJO HASSAN
BENOJ C AUGUSTIN(K/189/2004.)
RAFEEK. V.K.(K/134/2003)
U.M.HASSAN(K/00033/2016)
AATHIRA SUNNY(K/000638/2018)
BINCY JOB(K/001080/2017)
SALMAN FARIS(K/002563/2022)

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SRI. RENJITH GEORGE, SR. PUBLIC PROSECUTOR

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22.03.2023, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CRL.) NO. 28 OF 2023

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JUDGMENT

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Dated this the 22^nd day of March, 2023

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The petitioner is the complainant in ST No.255/2019 filed against the 2^nd respondent, alleging commission of the offence under Section 138 of the Negotiable Instruments Act ('the N.I Act' for short). While the matter was pending before the trial court, the parties settled their dispute through mediation and entered into Annexure A2 agreement on 07.12.2019. As per the terms of the agreement, the accused was to pay an amount of Rs.1,84,000/- on or before 30.05.2020. Based on the agreement, the proceedings were closed by the trial court, vide Annexure A3 judgment dated 03.09.2021. The accused having failed to pay the amount in terms of the agreement, the complainant filed Annexure A4 petition, praying for initiation of steps for recovering the amount due from the accused. By the impugned order (Annexure A5), the petition was dismissed holding that the court had become functus officio, as the proceedings were closed.

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Heard the learned counsel for the petitioner and the learned counsel for the 2^nd respondent.

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3.It is an undisputed fact that the 2^nd respondent failed to pay the amount in terms of the agreement. No doubt, once the case is

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OP(CRL.) NO. 28 OF 2023

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settled in Adalat and an award passed in terms of Section 21 of the Legal Service Authorities Act, the remedy is to get the award executed. In the case at hand, no award, as stipulated in Section 21 of the Legal Service Authorities Act, was passed. Hence, the complainant cannot be compelled to seek execution of the agreement for reason of the court having closed the proceedings. Interest of justice require that the petitioner be permitted to prosecute the criminal case.

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Hence, the original petition is accordingly disposed of, by restoring S.T No.255/2019 to the files of the Chief Judicial Magistrate Court, Thodupuzha and directing the learned Magistrate to proceed with the matter, after issuing notice to the parties.

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The parties shall appear before the trial court on 10.05.2023.

Sd/-

V.G ARUN JUDGE

OP(CRL.) NO. 28 OF 2023

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APPENDIX OF OP(CRL.) 28/2023

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PETITIONER ANNEXURES
Annexure1TRUE COPY OF THE COMPLAINT IN ST 255/2019
DATED 30/10/2019 OF CJM COURT,
THODUPUZHA.
Annexure A2TRUE COPY OF THE MEDIATION AGREEMENT
DATED 7/12/2019 EXECUTED BETWEEN THE
PETITIONER AND THE RESPONDENT AND SIGNED
BY THE MEDIATOR.
Annexure A3TRUE COPY OF THE ORDER PASSED IN ST
255/2019 BY THE CJM COURT THODUPUZHA
DATED 3/9/2021.
Annexure A4TRUE COPY OF THE PETITION FILED AS CMP
5302/2022 IN ST 255/2019 DATED 19/8/2022
OF CJM COURT, THODUPUZHA.
Annexure A5TRUE COPY OF THE ORDER PASSED IN CMP
5302/2022 IN ST 255/2019 OF CJM COURT,
THODUPUZHA DATED 23/8/2022.

Afsal Jamal v. State of Kerala

Case brief

What is this about?

What did the court decide?

Afsal Jamal v. State of Kerala

Case brief

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