Umayamma @ Uma Nayar vs Jayant Kumar on 24 July, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 32811 of 2005(F)


1. UMAYAMMA @ UMA NAYAR, W/O.LATE
                      ...  Petitioner
2. VIJI, D/O.LATE S.V.NAYAR,

                        Vs



1. JAYANT KUMAR, S/O.SRI.ASHOK KUMAR SINGH,
                       ...       Respondent

2. ASHOK KUMAR SINGH, S/O.LATE

3. STATE OF BIHAR,

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :24/07/2007

 O R D E R
                     PIUS C. KURIAKOSE, J.
                ----------------------------------
                 W.P.(C) NO. 32811 OF 2005
                ----------------------------------
           Dated this the 24th day of July , 2007

                           JUDGMENT

This writ petition under Article 227 of the Constitution has

been filed by the petitioners, who are accused Nos. 2 and 3 in

C.P.Case.No.336/2005 on the files of the Chief Judicial

Magistrate’s Court, Bokaro in Bihar for quashing the complaint, a

copy of which is Ext.P1 in this writ petition. The accusation

against the petitioners is that they along with accused Nos. 1

and 4 are guilty of offence punishable under Section 138 of the

Negotiable Instruments Act and Section 420 of the Indian Penal

Code. The petitioners are respectively the mother and sister of

accused No.1. The quashment of the complaint is sought for

mainly on the ground that even the allegations in the complaint

do not make out any offence against the petitioners.

2. I have heard the submissions of Sri.S.Sanal Kumar, the

learned counsel for the petitioners and also those of the learned

WPC No. 32811/2005 2

Public Prosecutor. Placing strong reliance on the judgment of the

Supreme Court on S.M. S.Pharmaceuticals Ltd. v. Neeta

Bhalla And Another (2005) 8 Supreme Court Cases 89), the

learned counsel for the petitioners would submit that the

essential averments to make out a case against the petitioners

who are alleged to be partners of the first accused under under

Section 141 of the Negotiable Instruments Act are absent in

Ext.P1 complaint and, therefore, the complaint is liable to be

quashed . The full text of Ext.P1 was read over to me by the

learned counsel who drew my attention to Section 141 of the

Negotiable Instruments Act. Counsel submitted that the cheque

in respect of which offence under Section 138 is alleged is

admitted in the complaint itself to be drawn not on the account

of the firm but on a joint account of accused Nos.1 and 4. The

counsel also submitted that it is not stated at all in the complaint

that the petitioners are in charge of the affairs of the firm. The

above submissions of the learned counsel certainly have merit,

but I notice that under Ext.P1 complaint offence under Section

420 of the Indian Penal Code is also alleged. Of course the

learned counsel argued that offence under Section 420 is also not

WPC No. 32811/2005 3

made out by the averments in the complaint. This aspect of the

matter is to be considered by the Learned Magistrate.

3. Under the above circumstances, I permit the petitioners

to file an application before the learned Magistrate through their

Advocate in the court below for a preliminary hearing of the

matter regarding the maintainability of the complaint and for

their discharge on the ground that the offences alleged against

them are not made out even on the averments of the complaint.

If the petitioners file an appropriate application before the

learned Magistrate as indicated herein above within one month of

their receiving a copy of this judgment, the learned Magistrate

will hear the petitioners through the counsel and pass orders

thereon within another one month thereafter. Considering the

above directions and the merit noticed by him in the submissions

of the learned counsel for the petitioners regarding the offence

alleged under Section 138 of the Negotiable Instruments Act, I

exempt the petitioners from personally appearing before the

learned Magistrate till orders are passed by the learned

Magistrate on the application suggested as above. I am sure

that the learned Magistrate will insist on the personal appearance

WPC No. 32811/2005 4

of the accused petitioners only when the same is absolutely

necessary even if the decision on the application comes to be

against the petitioners.

The writ petition is disposed of as above. No costs.

PIUS C. KURIAKOSE,

JUDGE.

Dpk