IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 Crl.MC.No. 2278 of 2008 --------------------------------- C.C.NO.885/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR. .................... PETITIONER/ IST ACCUSED: ---------------------------------------- ABRAHAM ELANJIMANNIL, AGED 55 YEARS, S/O.SRI.CHACKO, ELANJIMANNIL HOUSE, MANJAPRA P.O., KOOTTIKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.ANIL S.RAJ, SMT.K.N.RAJANI, SMT.MANJUSHA MOHANDAS, SMT.ANILA PETER. RESPONDENTS/ STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ANCHAL POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SRI.SOMASEKHARAN NAIR, AGED 71 YEARS, S/O.SRI.PARAMESWARAN PILLAI, SARANATH HOUSE, NEAR ANCHAL TELEPHONE EXCHANGE, THAZHAMMEL MURI, ANCHAL VILLAGE, PIN - 691 306. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2278 of 2008 ------------------------------------------------- Dated this the 18th day of June, 2008 ORDER The petitioner faces indictment in a prosecution for the offence punishable under Sec.420 of the IPC. The crime was registered on 20/5/06 in relation to an alleged act of cheating which commenced in 1996. The de facto complainant's son wanted employment to be secured and for that purpose, it is alleged, an amount of Rs.1,50,000/- was paid in two instalments by the de facto complainant to the accused. Receipts were obtained for such payments and the receipts, without dispute, show that the amounts were received from the son of the de facto complainant. The promise to secure the job was not satisfied and this allegedly led to the de facto complainant lodging the complaint in 2006. 2. The learned counsel for the petitioner submits that the Crl.M.C. No. 2278 of 2008 -: 2 :- allegations are totally unjustified and that, at any rate, in the total absence of any evidence forth coming from the person to whom the receipts were issued, the prosecution has no legs to stand and must fall to ground. Even his statement has not been recorded by the Investigating Officer, it is pointed out. 3. Did the petitioner raise this question before the learned Magistrate? Did he claim discharge? Why has he directly come to this Court? The learned counsel for the petitioner submits that the allegations are totally bereft of any merit and that this Court may be pleased to invoke the jurisdiction under Sec.482 of the Cr.P.C. The learned counsel for the petitioner further submits that reckoning the petitioner as an absconding accused, a warrant of arrest has already been issued by the learned Magistrate and this is one further deterrent against the petitioner for appearing before the learned Magistrate and claiming discharge in the ordinary and regular course. 4. Peculiar situations do call for unique response from the court. While I feel that there are no justifiable reasons to invoke the powers under Sec.482 of the Cr.P.C. in a case like this and that the petitioner must be left to seek the normal and ordinary relief of premature termination of the proceedings by discharge under Sec.239 of the Cr.P.C., I am satisfied that appropriate Crl.M.C. No. 2278 of 2008 -: 3 :- directions can be issued to allay the apprehension of the petitioner of unnecessary vexation and harassment by execution of the coercive processes issued against him. 5. This Crl.M.C. is, in these circumstances, allowed in part. Following directions are issued: (i) The petitioner shall appear before the learned Magistrate through his counsel on the next date of posting. Till that day, the warrant of arrest and other coercive processes issued against the petitioner shall not be executed. (ii) The petitioner shall be permitted to raise his plea of discharge under Sec.239 of the Cr.P.C. though his counsel and the personal appearance of the petitioner shall not be insisted to consider such plea of discharge. (iii) The personal presence of the petitioner can and need be insisted by the court only if the court takes a decision that the charges are liable to be framed against the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2278 of 2008 -: 4 :-