IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 99 of 2011()
1. M/S. S.L.K. FOOD PROCESSING,
... Petitioner
Vs
1. MANOJ R., S/O. K.N.RAVINDRAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/01/2011
O R D E R
THOMAS P.JOSEPH, J.
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Crl. M.C. No.99 of 2011
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Dated this the 13th day of January, 2011
O R D E R
Orders dated 16.11.2010 and 30.11.2010 in C.C.No.707 of
2008 of the court of learned Judicial First Class Magistrate-I,
Kozhikode are under challenge in this petition. Petitioner filed the
complaint against respondent for an offence punishable under
Section 138 of the Act. According to the petitioner, summons was
served on respondent No.1 and counsel appeared for him and
filed memo. Thereafter there was no response from the
respondent and coercive steps were taken. It is seen from
Annexure-C that Non Bailable Warrant was ordered to respondent
No.2 on 16.07.2009 and from then onwards it was being repeated
but could not be executed. In the meantime learned Magistrate
directed petitioner to furnish correct address of respondent No.2.
It would appear that on many of the posting days petitioner was
absent and he was represented by counsel. On 06.08.2010 there
was a direction to the petitioner to furnish correct address of
respondent. That was not complied with either on 01.10.2010
or on 16.11.201. On 16.11.2010 learned Magistrate extended the
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time for furnishing correct address of respondent No.2 on deposit
of costs of Rs.1,000/- On 30.11.2010 learned Magistrate issued
distress warrant as costs was not deposited. The aforesaid
orders are under challenge in this proceeding. Learned counsel
submits that there is no provision to award costs in the way
learned Magistrate has ordered and placed reliance on the
decision in Mary Angel v. State of Tamil Nadu ([1999]
5 SCC 209).
2. Though various contentions are raised before me by
learned counsel for petitioner after arguing the matter for some
time learned counsel submitted that petitioner may be permitted
to withdraw this petition with liberty to deposit costs awarded in
the court below and in the meantime distress warrant may be
stayed. Learned counsel has requested that in future proceedings
if costs is intended to be ordered by the learned Magistrate
petitioner may be permitted to urge the legal issues involved
before the learned Magistrate. Considering the facts and
circumstances of the case I am inclined to grant that relief.
Resultantly, Criminal Miscellaneous Case is dismissed as
withdrawn permitting petitioner to deposit the costs in the trial
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court within one month from this day. The Distress warrant issued
to the District Collector for realization of the amount will stand in
abeyance during the said period. It is made clear that in future
proceedings if costs is to be ordered against petitioner it will be
open to the petitioner to raise his objection to such proceeding as
provided under law.
THOMAS P. JOSEPH, JUDGE.
vsv