Purushothaman Kuttiyil vs The State of Kerala

Alexander Thomas, J.—It is stated that the petitioner is now a permanent resident of Coimbatore, Tamilnadu State and that though he is a native of Kerala, he has been settled at Coimbatore along with his family for the last 20 years in connection with his business purposes. That the petitioner and his wife are directors of a company, which is having its registered office at Coimbatore. That recently the petitioner has obtained reliable information that a warrant of arrest is pending against him in connection with a complaint said to have been filed by the 2nd respondent herein for offence under Section 138 of the Negotiable Instruments Act, as S.T.No.381/2004 on the file of the Judicial First Class Magistrate''s Court, Pattambi, and that the said case has been included in as long pending case, as L.P.No.9/2007.

It is further stated that the petitioner has never had any business transaction or any other transaction whatsoever with the 2nd respondent and that the petitioner has not issued any cheque to him. That the petitioner has not received any statutory notice said to have been issued by the 2nd respondent with respect to the alleged dishonour of the cheque in question and that the petitioner has never been served with any notice or summons on the impugned Ext.P-4 complaint from the Judicial First Class Magistrate''s Court, Pattambi, at any point of time. Now it is learnt that a lawyer has appeared purportedly on behalf of the petitioner by filing a memo of appearance in the above case. But that the petitioner has never entrusted any lawyer to conduct the above mentioned case as the petitioner was totally unaware about the pendency of such a case. It is urged that the entire transaction pursuant to Ext.P-4 compliant is nothing short of abuse of process of court and that the petitioner has reasons to suspect that some rivals of the petitioner have done a concerted unlawful act with malafide intention so as to falsely implicate the petitioner in the impugned Ext.P-4 complaint. It is also contended that the warrant pending against the petitioner in the above mentioned case is issued without the petitioner being properly served notice or summons and thus devoid of procedural adherence and is liable to be cancelled, etc. It is in the light of these aspects, that the petitioner has filed the instant Original Petition by taking recourse to the extraordinary powers conferred on this Court under Article 227 of the Constitution of India, with the following reliefs:

"(i) Call for he records in L.P. No. 9/2007 arising out of S.T. No. 381/2004 on the file of Judicial First Class Magistrate Court, Pattambi, and cancel the warrant pending against the petitioner in such a case.

(ii) recall the warrant pending against the petitioner in L.P.No. 9/2007 arising out to S.T. No. 381/2004 on the file of Judicial First Class Magistrate''s Court, Pattambi,

(iii) grant such other order that this Honourable court may deem fit and proper in the facts and circumstances of this case."

Heard Sri. K.R. Avinash, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. In the nature of the order that is proposed to be passed in this petition, notice to R-2 will stand dispensed with.

The petitioner has asserted that for more than the last 20 years, he has been permanently residing at Coimbatore and that he has not been residing in his native place. That the petitioner and his family are settled in Coimbatore in connection with his business purposes. Ext.P-1 is the identity card issued by the Election Commission of India, which shows that the address of the petitioner is at Tamilnadu. Ext.P-2 is the proceedings of the Unique Identification Authority of India, which also shows that the address of the petitioner is at Tamilnadu. Ext.P-3 is the certificate of incorporation of his company, which is based at Coimbatore. In the light of the petitioner''s assertion that the petitioner has been all throughout residing at Tamilnadu since the last 20 years, which is much prior to the institution of the impugned Ext.P-4 complaint, this Court is inclined to take a view that the petitioner may not have got notice or summons on Ext.P-4 compliant, as the address of the petitioner as accused in Ext.P-4 is shown at Kumaranallur, Pattambi, Palakkad district. This Court is not now inclined to consider the pleas of the petitioner for quashment of the complaint. However, this Court is certainly of the view that appropriate directions and orders could be issued by this Court to direct the learned Magistrate to consider the bail application and other applications that may be moved by the petitioner so as to release him on bail and so as to provide him reasonable opportunity to defend himself. This view is so taken by this Court, having regard to the fact that petitioner is residing at Coimbatore, Tamilnadu State since the last 20 years, whereas his address that has been shown in Ext.P-4 as at Pattambi and also taking into account the fact that the offence alleged is only one under Section 138 of the Negotiable Instruments Act.

In this view of the matter, it is ordered that in case the petitioner personally appears before the Judicial First Class Magistrate''s Court, Pattambi, which is dealing with L.P. No. 9/2007 in relation to S.T. No. 381/2004, within a period of 3 weeks from today and makes appropriate applications, including application for grant of bail and application for recall of non-bailable warrant, etc., then the learned Magistrate shall consider those applications on the same day and pass necessary orders thereon granting bail to the petitioner. It is made clear that it is for the petitioner to work out his other remedies in accordance with law.

With these observations and directions, the O.P(Crl.) stands finally disposed of.