C.C. No. 2831/2015 OF SPECIAl V. BY ADV. SRI BABU S. NAIR.
| Citation | 2017 |
| Date of Judgment | 28th JUNE, 2017 |
| Court | KERALA HIGH COURT |
| Case Type | CRIMINAL |
| Appellant | E.K. JALEEL,S/O KOYAN, INJAKUDDI HOUSE, NORTH EDATHALA, ALUVA P.O, ERNAKULAM DISTRICT, |
| Respondent | STATE OF KERELAREP BY PUBLIC PROSECUTOR,HIGH COURT OF KERLA, ERNAKULAM, KOCHI- 682 031 E.O. MIRSHADS/O T/K MAMMEDKOYA, MAYINKUTTY HOUSE, CHALIL BAZAR JUNCTION, PUTHIYANGADI P.O, KOZHIKODE DISTRICT, PIN- 673 021. |
| Bench | MR. JUSTICE ALEXANDER THOMAS |
| Referred | Sections – 202, 482, 19, 190, 200, 203, 204 of Cr.P.C.138, 143, 144, 141 of N. I ACT. |
FACTS OF THE CASE
An order worth Rs. 35 lakhs was received by the accused no.1 company for the sale of metal scraps under the acknowledgment of the remaining 2 accused. (A-2), (A-3). The accused 2 presented the cheque dated 13.06.2015, in favor of respondent no. 1 and when that was presented it got dishonored on the grounds of ‘excess arrangements’.
Then the letter for the particular incident was sent by the respondent to all the accused to pay the required amount in the next 15 days from the dated notice on 7.10.2015. But the notice sent to A-2 and A-3 was unserved as ‘unclaimed’. The complaint was filed under the special court and the court considered the matter without conducting an investigation; all the 3 accused were summoned for the matter.
ISSUES
- Can cognizance be taken without conducting the inquiry as per section 202 of Cr.P.C.?
- Can the cheque issued by the respondent as a valid cheque and the order from the special judicial first magistrate court be quashed?
ARGUMENTS
The learned counsel of the petitioner stated that the cheque issued by the respondent was not valid as it holds only the signature of the one signatory authority and to make this valid cheque the signature of both the accused has to be mandatorily present. Neglecting the inadequate amount not paid as per the cheque and even in the bank account. The cheque remains invalid.
Also, since the other remaining accused are beyond the territorial limits of the judge so they cannot be summoned as per section 202 of Cr.P.C. about section 19 of Cr. P.C. The investigation was not conducted as per section 202 of Cr.P.C. Also, incomplete information about the legality of the cheque is still in question.
JUDGEMENT
The learned counsel of the petitioner only raised a few averments that the cheque was not signed by both the accused. i.e. the directors of the company (A-2) and the petitioner himself (A-3). Whereas it only mentioned that only one accused had signed the cheque and if the bank account had a sufficient amount it would still be holding the invalidity status in the eyes of the court.
Also, the petitioner did not bring to light the vicarious liability as all the accused were liable in the case, and even the petition did not mention that the preliminary inquiry so conducted on the cognizance of the offense under section 200 of Cr. P.C. Whereas it raised the averment on the non-conduct of the inquiry under section 202 of Cr. P.C. Also in previous judgments made by different courts, the court holds the power to summon the accused even if they lie outside the jurisdiction of the judicial magistrate.
Furthermore, the court abstained from making any comments or any other opiated judgments on the sustainability and the reverting of the allegations made in the arguments. The court can only comment about the conduct of inquiry under section 202 of Cr. P.C.
The petitioner is asked to present relevant necessary evidence about the averments before the court of justice and the court would conduct the proceedings in a way that preliminary inquiry has been conducted under section 200 of Cr. P.C. Also as per the judgment made by the Bombay high court in ASR system supra that section 138 of the negotiable instrument cannot quash the complaint on the allegation that the court did not conduct an inquiry under section 202 of Cr. P.C.
REFERENCES
https://indiankanoon.org/doc/145203522/
written by LAKSHIKA TOMER intern under legal vidhiya.
