High Court Kerala High Court

Air Link India Ltd vs State Of Kerala on 20 March, 2007

Kerala High Court
Air Link India Ltd vs State Of Kerala on 20 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 710 of 2007()


1. AIR LINK INDIA LTD.,
                      ...  Petitioner
2. MR. SUNANDHAN RAY,
3. MR. ARABINDA RAY, DIRECTOR,
4. MR. SNEHASIS KABIRAJ, DIRECTOR,
5. MR. SUDIPTO SARKAR, DIRECTOR,
6. VINOD G. NAIR,

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. MR. CHANDRASEKHARA PILLAI,

3. SURESH KUMAR K.,

                For Petitioner  :SRI.SUNIL JACOB JOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :20/03/2007

 O R D E R
                                 R. BASANT, J.

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                         Crl.M.C.No.  710 of   2007

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                  Dated this the 20th day of   March, 2007


                                     O R D E R

The petitioners are accused 1 to 6 in a prosecution under

Section 138 of the N.I. Act. The petitioners have come to this Court

with the prayer that the prosecution initiated against them may be

quashed invoking the powers under Section 482 Cr.P.C.

2. What are the reasons? Two reasons are urged. First of all it

is contended that Section 141 of the Act can have no application in so

far as the petitioners are concerned as the requisite averments as

insisted by S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005

(4) KLT 209 (SC)) are not there in the complaint. I have looked into

this contention closely. The averments in the first paragraph of the

complaint make it very clear that the first accused is a company and

other accused are the Directors in charge and responsible to the

company as also the President and Director and officials of the said

company. I am in these circumstances satisfied that the dictum in

S.M.S. Pharmaceuticals (supra) can have no application to persuade

this court to prematurely terminate the proceedings.

Crl.M.C.No. 710 of 2007

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3. Secondly it is contended that the notice of demand, a copy of

which is produced as Annex.C, does not convey the details of the cheque in

question. It is true that the number and the name of the drawee bank are not

revealed in Annex.C. But that cannot deliver to the accused persons any

undeserved advantage. Of course, they are at liberty to raise the contention

before the court below that they were misled and did not have an

opportunity to respond to the notice of demand appropriately. It may not

be inapposite in this context to note that a reply notice had actually been

sent and in fact no contention was raised that want of details in the notice of

demand deprives the petitioners of an opportunity to effectively respond to

the notice.

4. I do not in these circumstances find any substance in the prayer

to invoke the powers under Section 482 Cr.P.C. I may hasten to observe

that I do not intend to foreclose any contention which the petitioners want

to raise before the learned Magistrate. I only intend to observe that the

powers under Section 482 Cr.P.C. do not deserve to be invoked in this case.

5. This Crl.M.C. is dismissed with the above observations. I take

note of the submission of the learned counsel for the petitioners that

unnecessary insistence on the personal appearance of the petitioners would

Crl.M.C.No. 710 of 2007

3

cause undeserved prejudice and hardship to the petitioners, who include

aged and sick persons. The prosecution is under Section 138 of the N.I. Act

and unless there be sufficient and satisfactory reasons, it may not be

necessary to insist on the personal presence of the accused persons. The

petitioners shall be at liberty to apply for exemption and the learned

Magistrate must proceed to pass appropriate orders on merits without

ritualistically insisting on their personal presence to consider such

applications.

(R. BASANT)

Judge

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