JENIMON v. STATE OF KERALA

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 CRL.MC NO. 8487 OF 2023 CRIME NO.ST NO.242/2018 OF Thrikkakara Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT SESSIONS COURT/SUB COURT, PERUMBAVOOR ST 242/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PETITIONER: KAKKANAD JENIMON, AGED 55 YEARS VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT., PIN - 683556 BY ADVS. P.PARAMESWARAN NAIR SREELATHA PARAMESWARAN NAIR SOORAJ T.ELENJICKAL HELEN P.A. ATHUL ROY STEPHANIE SHARON RESPONDENT/S: 1 2 IBRAHIM E.A. IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN - 683565 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV Siraj K H CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.02.2024, ALONG WITH Crl.MC.8499/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 CRL.MC NO. 8519 OF 2023 CRIME NO.0/0 OF , Ernakulam AGAINST THE ORDER/JUDGMENT ST 241/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD PETITIONER: JENIMON, AGED 55 YEARS VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT., PIN - 683556 BY ADVS. P.PARAMESWARAN NAIR ATHUL ROY STEPHANIE SHARON HELEN P.A. SOORAJ T.ELENJICKAL SREELATHA PARAMESWARAN NAIR RESPONDENTS: 1 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 IBRAHIM E.A AGED 33 YEARS, S/O. ALIYAR, IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O., ERNAKULAM DISTRICT., PIN - 683565 BY ADV Siraj K H THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.02.2024, ALONG WITH Crl.MC.8499/2023 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 5 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 6 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 CRL.MC NO. 8524 OF 2023 CRIME NO.ST NO.1917/2018 OF Thrikkakara Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT SESSIONS COURT/SUB COURT, PERUMBAVOOR ST 1917/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PETITIONER: KAKKANAD JENIMON AGED 55 YEARS VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683556 BY ADVS. P.PARAMESWARAN NAIR SOORAJ T.ELENJICKAL ATHUL ROY STEPHANIE SHARON HELEN P.A. SREELATHA PARAMESWARAN NAIR RESPONDENTS: 1 2 IBRAHIM E.A. AGED 33 YEARS IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN - 683565 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV Siraj K H CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 7 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.02.2024, ALONG WITH Crl.MC.8499/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 8 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 CRL.MC NO. 8554 OF 2023 CRIME NO.S.T.NO.1919/2018 OF Thrikkakara Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT SESSIONS COURT/SUB COURT, PERUMBAVOOR ST 1919/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PETITIONER: KAKKANAD JENIMON AGED 55 YEARS JENIMON VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-683 556., PIN - 683556 BY ADVS. P.PARAMESWARAN NAIR SREELATHA PARAMESWARAN NAIR ATHUL ROY STEPHANIE SHARON HELEN P.A. SOORAJ T.ELENJICKAL RESPONDENTS: 1 2 IBRAHIM E.A. AGED 33 YEARS IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O., ERNAKULAM DISTRICT, PIN - 683565 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 9 Siraj K H MOHAMMED SHAD K.A.(K/001636/2023) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.02.2024, ALONG WITH Crl.MC.8499/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 10 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 CRL.MC NO. 8602 OF 2023 CRIME NO.ST 1918/2018 OF Thrikkakara Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT OS 34/2018 OF ASSISTANT SESSIONS COURT/SUB COURT, PERUMBAVOOR ST 1918/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PETITIONER: KAKKANAD JENIMON AGED 55 YEARS VANDANATHIL HOUSE, VENGOLA KARA, ARAKKAPADI VILLAGE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-683 556., PIN - 683556 BY ADVS. P.PARAMESWARAN NAIR SREELATHA PARAMESWARAN NAIR SOORAJ T.ELENJICKAL STEPHANIE SHARON ATHUL ROY HELEN P.A. RESPONDENTS: 1 2 IBRAHIM E.A AGED 33 YEARS IRUPPAKKOOTTIL HOUSE, KUNNATHUNADU VILLAGE, KUMARAPURAM P.O., ERNAKULAM, PIN - 683565 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. Siraj K H MOHAMMED SHAD K.A.(K/001636/2023) CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 11 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.02.2024, ALONG WITH Crl.MC.8499/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 12 BECHU KURIAN THOMAS, J. ----------------------------------------- Crl.M.C. Nos. 8499 of 2023, 8487/2023, 8519/2023, 8524/2023, 8554/2023 & 8602/2023 ---------------------------------------- Dated this the 19th day of February, 2024 ORDER Petitioner challenges the criminal proceedings initiated against him in S.T.Nos.240/2018, 242/2018, 241/2018, 1917/2018, 1919/2018, and 1918/2018, respectively, on the files of the Judicial First Class Magistrate Court, Kakkanad (TEMPORARY). These cases arise out of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881. The challenge is raised on the ground that, a transaction which has the trappings of a pure civil dispute is being given the color of a criminal case to pressurize the petitioner to part with a huge amount.

2. The allegations in all these cases are that the petitioner is the owner of a metal crusher unit, and the second respondent had taken the said crusher unit on lease upon the terms and conditions of lease agreement entered into between the parties for a period of eleven months. An amount of Rs.1,65,00,000/- was paid by the second respondent to the petitioner as lease security money. When the rental agreements entered into between the parties expired, the second respondent demanded the advance security amount from CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 13 the petitioner, and the petitioner promised to return the entire amount in instalments and issued six cheque bearing Nos.095523, 095525, 095524, 095527, 095528, and 095526. When the cheques were presented for encashment, they were returned dishonoured with the memo ‘payment stopped by drawer’, and thereafter, the complaint was filed.

3. On a perusal of the pleadings in these petitions under Section 482 of Cr.P.C., it is evident that the main ground of challenge is that there is a civil case filed by the second respondent as O.S N0.34/2018 before the Sub-Court, Perumbavoor; seeking recovery of an amount of Rs.1,74,00,000/- from the petitioner, and therefore, it is alleged that the criminal case is filed only to compel payment in the civil case.

4. Having heard the respective counsel, this Court is of the view that the proceedings under Section 138 N.I.Act arises out of a cause of action from the dishonour of a Negotiable Instrument. Recovery of amount due under a negotiable instrument is different from the criminal proceedings under Section 138 of the Negotiable Instruments Act. Merely because a civil suit has been filed for recovery of money does not mean that the proceedings under Section 138 of the Negotiable Instruments Act ought to be quashed. Both are different and arising out of distinct causes of action. CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 14

5. Even otherwise, as the learned counsel for the 2 nd respondent pointed out the civil suit was filed much after the criminal case was instituted. Therefore, the maintainability of the criminal prosecution cannot be questioned on the ground of the civil suit. Further civil case is filed for recovery of money while the criminal case is filed for imprisonment. Therefore, I find no merit in these Crl.M.Cs and they are dismissed. AJM BECHU KURIAN THOMAS JUDGE CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 15 APPENDIX OF CRL.MC 8487/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR CERTIFIED COPY OF THE JUDGMENT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR DATED 12.01.2023 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREEIN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR DATED 09.02.2023 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT DATED 10.02.2018 CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 16 APPENDIX OF CRL.MC 8519/2023 PETITIONER ANNEXURES AnnexureA1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.34/2018 TRUE COPY OF THE JUDGMENT DATED 12.1.2022 IN O.S. NO. 34/2018 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT IN S.T.NO. 241/2018 JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKAMNAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 17 APPENDIX OF CRL.MC 8524/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure6 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 FILED BY 1ST RESPONDENT TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF FILED BY PETITIONER IN O.S.NO.34/2018 BEFORE SUB COURT, PERUMBAVOOR TRUE COPY OF THE JUDGMENT DATED 12.01.2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE IN I.A.NO.6/2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.02.2018 IN ST.NO.1917/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 18 APPENDIX OF CRL.MC 8554/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure6 TRUE COPY OF THE PLAINT FILED BY 1ST RESPONDENT IN O.S. NO.34/2018, SUB COURT, PERUMBAVOOR. TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF FILED BY PETITIONER IN O.S.NO.34/2018 BEFORE SUB COURT, PERUMBAVOOR TRUE COPY OF THE JUDGMENT DATED 12.01.2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE IN I.A.NO.6/2023 IN O.S. NO.34/2018 OF SUB COURT, PERUMBAVOOR TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.08.2018 IN S.T.NO.1919/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 19 APPENDIX OF CRL.MC 8602/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 5.10.2018 TRUE COPY OF THE WRITTEN STATEMENT WITH SET OFF IN O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 01.01.2021 TRUE COPY OF THE JUDGMENT N O.S. NO.34/2018 SUB COURT, PERUMBAVOOR DATED 2.01.2023 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE N O.S.NO.34/2018 SUB COURT, PERUMBAVOOR DATED 09.02.2023 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BY PETITIONER DATED 10.02.2018IN O.S.NO.1918/2018 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD CRL.MC NO. 8499 OF 2023 AND CONNECTED CASES 20 APPENDIX OF CRL.MC 8499/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PLAINT IN O.S. NO.34/2018 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. TRUE COPY OF THE JUDGMENT IN O.S. NO. 34/2018 DATED 12.1.2023 TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE DECREE TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 20.06.2017 CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO. S.T. 240/2018 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 TRUE COPY