P.A.NIAMATHULLA V. THE UNION OF INDIA

WP(C)/12313/2009

AI Insights

The case involves P.A. Niamathulla, the petitioner, who is accused in a case under Section 138 of the Negotiable Instruments Act concerning a dishonoured cheque. The petitioner argued that the cheque was obtained fraudulently by a private financier (5th respondent) and sought various writs to prevent similar future occurrences and to ensure proper judicial handling of such cases. The High Court of Kerala dismissed the petition, stating that the complaint did not lack a prima facie basis for an offence and that general directives to courts and authorities were inappropriate without specific instances of judicial error or legal violation.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 722473 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 22-05-2009
• Assessment Year: misc
• Laws Referred To: Negotiable Instruments Act, Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P NAIR; R BINDU
• Assessee Lawyers: P A NIAMATHULLA
• Keywords: Cheque dishonour; Financial institutions; Writ petition; Illegal Money Lending; Criminal Courts
• Section: 138; 269(SS)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 12313 of 2009(S) -------------------------- PETITIONER(S): --------------- P.A.NIAMATHULLA, S/O.P.M.ABDUL KAREEM, KANNATTUPADAVIL HOUSE, U.C.COLLEGE P.O., ALUVA-2. BY SRI.P.A.NIAMATHULLA (PARTY-IN-PERSON) RESPONDENT(S): --------------- 1. THE UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF FINANCE, NEW DELHI. 2. THE ATTORNEY GENERAL OF INDIA, OFFICE OF THE ATTORNEY GENERAL OF INDIA, SUPREME COURT OF INDIA, NEW DELHI. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 5. K.MUHAMMED, S/O.KUNJU, PALAKKAPARAMBIL HOUSE, U.C.COLLEGE P.O., ALUVA. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R1 & R2 BY GOVT. PLEADER SMT.R.BINDU FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.P.(C) NO. 12313 OF 2009-S ----------------------------------------- Dated 22nd May, 2009. JUDGMENT Balakrishnan Nair, J. The petitioner is an accused in S.T.No.91/2009, on the files of Judicial First Class Magistrate's Court-III, Aluva. Originally, it was pending as S.T.No.1897/2005 before the Judicial First Class Magistrate's Court – I, Aluva. The offence alleged against the petitioner is one under Section 138 of the Negotiable Instruments Act. According to the petitioner, the 5th respondent is a private financier, who obtained a blank cheque from him. The said blank cheque leaf has been used to create a cheque for Rs.One lakh. On the dishonour of the cheque, the present complaint has been filed, it is submitted. The petitioner, who appeared in person, points out that similar illegal actions are resorted to by all private financiers. The prevention of the same is a matter to be looked into by this Court. So, he has filed this Writ Petition, seeking the following reliefs: “1. Issue a writ of certiorari or an appropriate form of writ, WPC 12313/09 2 order or direction to call for, verify and quash exhibit P1 complaint. 2. Issue a writ of certiorari or mandamus or any other appropriate form of writ, order or direction directing all the criminal courts in the State of Kerala not to take cognizance of the offence under Section 138 of the N.I. Act, except on production of documentary proof of business transaction, prima facie evidencing to constitute the complainant as the 'holder' of the dishonoured cheque, defined under Section 8. 3. Issue a writ of certiorari or mandamus, directing all the criminal courts having original jurisdiction and appellate jurisdiction to ensure the compliance with Section 269-SS of the Income Tax Act, 1961, in proving the payment of amount of consideration in the cases of offence under Section 138 of the N.I.Act. 4. Issue a writ of mandamus, commanding the first respondent to ensure that no banking or non-banking financial institutions are obtaining cheques at the time of payment of the loan amount or as a condition for allowing the loans. 5. Issue a writ of mandamus, commanding the 3rd respondent to take adequate urgent actions to ensure that the police authorities are initiating proper and vigilant actions against the illegal money lending, by making use of the cheques.” 2. Going by Ext.P1 complaint, if all the averments therein are taken to be true, it cannot be said that the same does not, prima facie, disclose any offence. So, we are not justified in quashing Ext.P1 complaint. Prayer Nos.2 to 5 cover certain general directions against the official respondents and also the criminal courts concerned. To be specific, prayers 2 and 3 are sought against the criminal courts functioning in the State of Kerala. The 4th WPC 12313/09 3 prayer is against the 1st respondent Union of India and the 5th prayer is against the 3rd respondent State of Kerala. Going by prayers 2 and 3, we feel that no such directions could be issued concerning the exercise of judicial functions by criminal courts. If, in a particular case, any error is committed by the court concerned, the aggrieved person has to take up the matter before the appropriate forum. As far as the 3rd prayer is concerned, if non- banking financial institutions are committing any illegality, the matter can be brought to the notice of the authority, which is authorised to take action against such alleged illegality. Only after making such motions before the competent authorities, a person aggrieved can come before this Court, raising the said prayer. The 5th prayer is for a direction to the State Government to ensure that the police officers under it take proper action against illegal money lending, using cheques. If such actions are cognizable offences, the petitioner can bring them to the notice of the concerned Station House Officer. Otherwise, he can directly move the criminal court concerned, by filing a private complaint. We feel that no omnibus direction could be issued from this Court against the State in this regard. In the result, no relief could be granted to the petitioner under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. But, the dismissal of the Writ Petition will not affect the WPC 12313/09 4 contentions of the petitioner, which, he may urge before the appropriate forum/authorities concerned. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. nm/ "