IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.MC.No. 1461 of 2010(C) -------------------------------------- [ST.NO.1140/2010 OF JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE COURT), THIRUVANANTHAPURAM] .................... PETITIONER/ACCUSED: ---------------------------------- P.K.PODDAR, MANAGING DIRECTOR, PODDAR UDYOG LTD., HONG KONG HOUSE, 31, BBD BAGH (S), CALCUTTA. BY ADVS. SRI.NAIR AJAY KRISHNAN, SRI.R.T.PRADEEP, SRI.V.VIJULAL. RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS SENIOR GRADE ASSISTANT (LEGAL), S.YASODHARA. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM, R2 BY ADVS. SRI.SAJI VARGHESE, SMT.MARIAM MATHAI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/09/2010,ALONG WITH CRL.M.C. NO. 1462/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. ----------------------------- Crl.M.C.Nos.1461, 1462, 1463, 1464, 1465 & 1466 of 2010 ----------------------------- COMMON ORDER Petitioner is the accused in S.T.No.1140/2010 and S.T.No.2203/2008 on the file of Judicial First Class Magistrate's Court-IV, Thiruvananthapuram, C.C.Nos.155/2008 and 156/2008 and S.T.No.159/2005 on the file of Judicial First Class Magistrate's Court-V, Thiruvananthapuram and S.T.No.104/2006 on the file of Judicial First Class Magistrate's Court-X, Thiruvananthapuram. The offence alleged against the petitioner and the co-accused in all the cases is under Section 138 of Negotiable Instruments Act. As petitioner did not appear, the case against him was split up and the other accused were tried. They were convicted and sentenced to a fine of Rupees Five thousand for the offence under Section 138 of Negotiable Instruments Act. These petitions are filed under Section 482 of Code of CRMC 1461/10 & con. cases 2 Criminal Procedure to quash the proceedings contending that as the other accused have already been convicted and sentenced and the fine of Rupees Five thousand was realised, continuation of the prosecution against the petitioner is only an abuse of process of the court. 2. Argument of the learned counsel appearing for the petitioner is that as petitioner is only the Managing Director of the parent Company and the Company and the Director of the company were already convicted and sentenced, petitioner cannot be prosecuted further. It is also contended that pursuant to the order passed by High Court of Calcutta in the petition filed by the parent Company, entire amount payable to the complainant was paid and in such circumstances, no further amount is liable to be paid and therefore, continuation of the proceedings is not in the interest of justice. CRMC 1461/10 & con. cases 3 3. Learned counsel appearing for the petitioner and second respondent/complainant were heard. 4. After completion of the commission of the offence under Section 138 of Negotiable Instruments Act, payment of the amount covered by the dishonoured cheques will not erase the criminal liability. True, under Section 147 of Negotiable Instruments Act, the offence could be compounded. 5. Though the Company and one of the Directors were convicted in the respective cases, cases against the petitioner were split up and separately re-filed. In such circumstances, petitioner is not entitled to contend that his prosecution in the split up case is illegal. Petitioner is entitled to raise all the contentions at the time of trial. 6. Learned counsel appearing for the petitioner then submitted that personal presence of the petitioner may be dispensed with at the time of trial. If petitioner files a petition under Section 205 of Code of Criminal Procedure, learned CRMC 1461/10 & con. cases 4 Magistrate shall not insist for the presence of the petitioner for the purpose of trial. If a non bailable warrant is pending, petitioner is at liberty to surrender and apply for regular bail. If such an application is filed learned Magistrate to pass appropriate order in accordance with law, without delay, considering the fact that the offence alleged against the petitioner is only under Section 138 of Negotiable Instruments Act. Petitions are disposed. 24th September, 2010 (M.Sasidharan Nambiar, Judge) tkv