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
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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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