Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946 CRL.MC NO. 11024 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 30.01.2024 IN ST NO.1081 OF 2022 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD PETITIONER: BINDU S, AGED 48 YEARS D/O LATE BHASKARAN PILLAI, RESIDING AT B2-101, ELITE PROMENADE, J.P NAGAR, 7TH PHASE, BANGALORE, KARNATAKA, PIN - 560078 BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN MAHESH CHANDRAN SARANYA BABU ABHISHEK S. TANYA KADEEJA
RESPONDENT: SASIKUMAR V.P, VADAKKE MALIACKAL GOPUVIHAR, KAKKANAD P.O, ERNAKULAM, PIN - 682030 BY ADV HARIKUMAR G. (GOPINATHAN NAIR) OTHER PRESENT: SRI. HARIKUMAR.G NAIR FOR THE RESPONDENT. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.02.2025, THE COURT ON 03.03.2025 PASSED THE FOLLOWING: V.G.ARUN, J = = = = = = = = = = = = = = = = = Crl.M.C.No.11024 of 2024 = = = = = = = = = = = = = = = = = = Dated this the 3rd day of March, 2025
ORDER
Petitioner is the sole accused in S.T.No.1081 of 2022 pending before the Judicial First Class Magistrate, Kakkanad. The case originated from a complaint filed by respondent under Sections 138 and 142 of the Negotiable Instruments Act.
2. Shorn of unnecessary details, the challenge in this
Crl.M.C is primarily against Annexure H order by which the learned Magistrate directed the petitioner to pay 20% of the cheque amount as interim compensation under Section 143A of the N.I.Act, even though the larger prayer is to quash the complaint and further proceedings. The challenge is premised upon the fact that the cheque, dishonour of which had given rise to the cause of action for filing the complaint under Section 138 of the N.I.Act, was issued at the instance of the 1 st
respondent purchasing shares in a company named Q Wave Soft Systems Pvt.Ltd. The specific case of the petitioner is that the respondent had diverted the funds of the company in which she had invested huge amounts, compelling her to approach the National Company Law Tribunal, Kochi calling for a forensic audit of the company. The petitioner's contention is that the complaint under Section 138 should not be proceeded until the proceedings before the NCLT attains finality.
3. Learned counsel for the petitioner submitted that the
petition before the NCLT was disposed on 21.12.2022 and an appeal was filed before the NCLAT on 03.02.2023. The appeal was not scrutinised or numbered, leaving the petitioner with no alternative than to approach this Court seeking a direction to the NCLAT to scrutinise and number the appeal. In the meantime, the respondent instituted the complaint under Section 138 of the NI Act and the Magistrate mechanically passed an order directing payment of interim compensation. As the complaint is being proceeded without awaiting the outcome of the appeal pending before the NCLAT, the instant Crl.M.C is filed.
4. Learned counsel for the 1st respondent submitted that
the interim order in the Crl.M.C was passed, solely based on the submission of the counsel for the petitioner that his appeal before the NCLAT will be considered within two weeks. It is pointed out that, by the time the above submission was made, the NCLAT had already dismissed petitioner's appeal on 11.12.2024. It is submitted that, after filing the appeal on 03.02.2023, the petitioner did not take steps to cure the defeats notified by the Registry of the NCLAT. Instead, she approached this Court seeking a direction to the Registry of NCLAT to complete scrutiny of the appeal expeditiously. The appeal itself have been dismissed thereafter, the Crl.M.C is liable to be dismissed.
5. Learned counsel for the petitioner submitted that his client was not aware about the dismissal of his appeal by the NCLAT on 11.12.2024. In fact, even in the e.mails dated
08.12.2024 and 23.12.2024 addressed to the petitioner's counsel, the Registry of the NCLAT had informed that the appeal is pending. On coming to know about dismissal of the appeal, steps were taken for its restoration and that petition is not yet decided.
6. As submitted by the learned counsel for the 1 st respondent, this Court passed the following interim order on 27.12.2024.
“The grounds taken by the petitioner for quashing the proceedings for the offence punishable under Section 138 of the N.I. Act is that there is mismanagement in the affairs of the company and the petitioner already initiated proceedings before the NCLT in which he failed and he has filed appeal before the NCLAT. The counsels submits that the said proceedings will have direct impact on the proceedings before the Trial Court. Even though, I am not impressed with the grounds raised in the Crl.M.C., since the learned counsel for the petitioner points out that his appeal before the NCLAT will be considered within a period of two weeks, hence, the proceedings in S.T. No.1081/2022 of the Judicial First Class Magistrate Court, Kakkanad, is stayed for a period of two weeks.”
As it is now apparent that, even as on the date when the
interim order was passed, the appeal filed by the petitioner had been dismissed and the appeal has not been restored to file. In such circumstances, the contention that the issue involved in the proceedings pending before the NCLAT will have direct impact on the proceedings in S.T.No.1081 of 2022 can only be rejected. No other legal ground to interfere with either the
order passed under Section 143A of N.I.Act or further
proceedings in the criminal case, is made out. For the aforementioned reasons, the Crl.M.C is dismissed. sd/- V.G.ARUN, JUDGE APPENDIX OF CRL.MC 11024/2024 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI Annexure B A TRUE COPY OF THE FILING RECEIPT EVIDENCING FILING OF APPEAL ON 03.02.2023 Annexure C A TRUE COPY OF THE POLICE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE THRIKKAKARA POLICE STATION DATED 04.06.2022 Annexure D A TRUE COPY OF THE COMPLAINT ST 1081 OF
2022 FILED UNDER SECTION 138 AND 142 OF THE NI ACT, 1881 BY THE RESPONDENT BEFORE THE HON’BLE JUDICIAL FIRST-CLASS MAGISTRATE COURT, KAKKANAD Annexure E A TRUE COPY OF THE CMP NO. 3284 OF 2023 FILED UNDER SECTION 143A OF THE NI ACT, 1881 BY THE COUNSEL FOR THE RESPONDENT BEFORE THE COURT BELOW DATED 16.09.2023 Annexure F A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON’BLE COURT IN WP(C) NO. 25317 OF 2023 DATED 02.08.2023 Annexure G A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE 143A PETITION Annexure H A TRUE COPY OF THE ORDER DATED 30.01.2024 PASSED BY THE HON’BLE JUDICIAL FIRST-CLASS MAGISTRATE COURT, KAKKANAD IN CMP NO. 3284 OF 2023
Annexure I A TRUE COPY OF THE PROCEEDINGS DATED 27.06.2024 AND 13.08.2024 IN ST NO. 1081 OF 2022 Annexure J A TRUE COPY OF THE DRAFT SETTLEMENT AGREEMENT PREPARED BY THE PARTIES RESPONDENT ANNEXURES Annexure R-1(a) A TRUE COPY OF THE COMPANY PETITION NO. 24/KOB/2022 FILED BEFORE THE NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH Annexure R-1(b) A TINE COPY OF THE MEMORANDUM OF UNDERSTATING DATED 09.112020 PETITIONER ANNEXURES Annexure K A TRUE COPY OF THE RESTORATION PETITION FILED BY THE APPLICANT HEREIN IN TO RESTORE COMPANY APPEAL(AT) - 900217/CN/2024