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GOPI versus THOMAS

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GOPI v. THOMAS - Crl Rev Pet No. 4220 of 2006 [2006] RD-KL 2185 (30 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4220 of 2006()

1. GOPI, S/O.KUTTAN,
... Petitioner

Vs

1. THOMAS, S/O.ULAHANNAN,
... Respondent

2. STATE OF KERALA, REP. BY PUBLIC

For Petitioner :SRI.UNNIKRISHNAN.V.ALAPATT

For Respondent :SRI.CIBI THOMAS

The Hon'ble MR. Justice K.T.SANKARAN

Dated :30/11/2006

O R D E R

K.T. SANKARAN, J.

................................................................................... CRL. R.P. 4220 OF 2006 ...................................................................................

Dated this the 30th November , 2006

O R D E R

The petitioner was convicted for the offence under section 138 of the Negotiable Instruments Act and he was sentenced to undergo simple imprisonment for a period of three months . He was also directed to pay compensation of Rs.60,000/- to the complainant under section 357(3) of the Code of Criminal Procedure . On appeal by the accused, the appellate court confirmed the conviction and sentence

2. Crl.M.A. No. 12200 of 2006 was filed by the petitioner/accused and the first respondent/complainant, stating that the parties have amicably settled the dispute. That application was allowed. In the result, Crl. Revision Petition is allowed. The conviction and sentence imposed on the petitioner are set aside. The petitioner is acquitted under section 320(8) of the Code of Criminal Procedure K.T. SANKARAN,

JUDGE.

lk CRL.R.P. 4200 OF 2006 2

K.T. SANKARAN, J.

................................................................................... CRL. M.A.NO. 12200 OF 2006 IN CRL. R.P. 4220 OF 2006 ...................................................................................

Dated this the 30th November , 2006

O R D E R

This is an application filed under section 147 of the Negotiable Instruments Act seeking permission to compound the offence under section 138 of the Negotiable Instruments Act. It is stated in the application that the parties have amicably settled the dispute. The application is signed by the complainant as well as the accused and their counsel. The application is allowed. K.T. SANKARAN,

JUDGE.

lk

? IN THE HIGH COURT OF KERALA AT ERNAKULAM

+WP(C) No. 32153 of 2006(C) #1. MOIDEEN SHAH, S/O. MARAKKAR SHAH,
... Petitioner

Vs

$1. DR.JOSEPH MATHEW,
... Respondent

! For Petitioner :SRI.JOSHI N.THOMAS

For Respondent : No Appearance

*Coram

The Hon'ble MR. Justice R.BASANT

% Dated :05/12/2006

: O R D E R

R.BASANT, J.

W.P.C.NO.32153 OF 2006

Dated this the 5th day of December, 2006.



JUDGMENT

When this petition came up for hearing, the learned counsel for the petitioner was pointedly requested to explain how in the light of Section 340 Cr.P.C without filing an appeal under Section 341 Cr.P.C, the petitioner can seek to invoke the jurisdiction of this Court under Article 226/227 of the Constitution. The learned counsel for the petitioner submits that appeal under Section 341 Cr.P.C is possible only when an application to make a complaint under Section 340 Cr.P.C has been rejected refusing to make a complaint. According to the petitioner, such refusal, can be done only after conducting enquiry as contemplated under Section 340 Cr.P.C. In as much as no such completed enquiry has been conducted, it cannot be held to be a refusal to make a complaint. This is, in fact, a refusal to conduct enquiry and therefore the proper remedy is not an appeal under Section 341 Cr.P.C, it is submitted.

2. I am unable to agree with the learned counsel for the petitioner. The order impugned, copy of which is produced as Ext.P6, clearly shows that the learned Magistrate felt after W.P.C.NO.32153 OF 2006 2 examining CW1-the petitioner, that no further enquiry need be proceeded with and on the available materials, the prayer to make a complaint under Section 340 Cr.P.C can be dismissed. The impugned order is therefore one which is squarely appealable under Section 341 Cr.P.C. The fact that sufficient enquiry has not been conducted before passing the impugned order is also a ground which can be taken in a properly instituted appeal under Section 341 Cr.P.C.

3. This Writ Petition must in these circumstances be held to be not maintainable as the petitioner has a remedy under the specific provisions of the Code of Criminal Procedure to challenge the impugned order.

4. This Writ Petition is, in these circumstances, dismissed. I may hasten to observe that the dismissal of this petition will not in any way fetter the rights of the petitioner to prefer an appeal under Section 341 Cr.P.C in accordance with law.

5. Hand over a copy of this order to the learned counsel for the petitioner today itself.

(R.BASANT, JUDGE)

rtr/ W.P.C.NO.32153 OF 2006 3


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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