Swaroop Divakar V. M/S. Trasset Software Development & Support Center Ltd. and State of Kerala

Crl.MC/3972/2011

AI Insights

The case involves the petitioner, Swaroop Divakar, who is accused in two criminal cases (C.C. Nos. 121/2011 and 24/2011) pending before the Judicial First Class Magistrate, Kunnamangalam, alleging offences under section 138 of the Negotiable Instruments Act. The petitioner has not appeared in these cases, citing threats to his life as the reason for his non-appearance. The court considered the petitioner's request for exemption from personal attendance under section 205 Cr.P.C. due to his residence in Bangalore and the alleged threats to his life. The court decided that the petitioner should first surrender and obtain bail, after which he could apply for exemption from personal attendance.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 816138 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-11-2011
• Assessment Year: misc
• Laws Referred To: Negotiable Instruments Act, Criminal Procedure Code
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: N SURESH
• Assessee Lawyers: ANIL NAIR; J R NAVAZ; NIVEDITA KAMATH
• Keywords: Criminal Miscellaneous Case; Negotiable Instruments; Non-appearance; Exemption from personal attendance; Threat to life
• Section: 205; 138; 82; 83

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 Crl.MC.No. 3972 of 2011() ------------------------- CC.24/2011 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... PETITIONER(S): ACCUSED -------------------------------------- SWAROOP DIVAKAR 6601. GIVENCHY, MONTE CARLO, DEDDABELLAPUR ROAD, YELAHANKA, BANGALORE-560064. BY ADV. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. M/S. TRASSET SOFTWARE DEVELOPKMENT & SUPPORT CENTER LTD., KAVOOR, NELLIKODE ROAD, CHEVAYUR CALICUT-673071(REPRESENTED BY ITS AUTHORISED REPRESENTATIVE AND PRODUCTS & OPERATION MANAGER.) 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. N. SURESH FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/11/2011, ALONG WITH CRIMINAL MISC. CASE NO. 3976/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ds Crl.MC.No. 3972 of 2011() APPENDIX PETITIONERS ANNEXURES: A1: COPY OF THE COMPLAINT FILED BY THE COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KUNNAMANGALAM. A2: COPY OF FORM NO.16A TDS/194J OF THE INCOME TAX ACT FOR THE YEAR 2009-10. A3: COPY OF THE LETTER DATED 22-11-2010 SUBMITTED BY THE PETITIONER TO ICICI BANK. A4: COPY OF THE COMPLAINT DATED 09-12-2010 IN HINDI VERSION SUBMITTED BY THE PETITONER TO THE SENIOR SUPERINTENDENT OF POLICE, GAUTAM BUDH NAGAR. A4(a): COPY OF THE ENGLISH VERSION OF ANNEXURE A-4. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ PA TO JUDGE DS N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. Nos: 3972 & 3976 OF 2011 ------------------------------------------ Dated this the 21st day of November, 2011 O R D E R The petitioner is the accused in C.C. Nos. 121/2011 and 24/2011, which is now pending before J.F.C.M. Kunnamangalam. Both the cases were filed against him alleging offences under section 138 of Negotiable Instruments Act. The learned counsel for the petitioner has taken me through the averments raised in the petition which, according to the learned counsel, would make it clear that there was no valid contract and that the offence alleged against the petitioner cannot be sustained. Those are matters (facts) which the petitioner can certainly raise before the Court below at the appropriate stage. Crl. M.C. Nos: 3972 & 3976 OF 2011 -2- The learned counsel submits that the petitioner belongs to Bangalore and so he may be permitted to file a petition under section 205 Cr.P.C. It is the admitted case that the petitioner has not appeared in both those cases till this date. The learned counsel submits that there is a threat to the petitioner's life and that is why the petitioner could not appear before the Court till this date. The cheques are stated to be for Rs.20,00,000/- each. Of course, that is not very much germane here. However, the fact remains that the petitioner did not appear before Court so far. Proceedings under sections 82 and 83 Cr.P.C. are stated to be afoot. As such it is for the petitioner to surrender before learned Magistrate at the earliest and apply for bail. He can convince the learned Magistrate as to the reasons for his non appearance till that date. After obtaining bail the petitioner can apply for exemption from personal attendance Crl. M.C. Nos: 3972 & 3976 OF 2011 -3- under section 205 Cr.P.C. That will certainly be considered by the learned Magistrate taking into consideration of all the circumstance that may be stated by the petitioner. Hence these petitions are disposed of accordingly. N.K. BALAKRISHNAN, JUDGE jjj "