IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 CRL.MC.NO. 424 OF 2011() -------------------------------------- CRRP.57/2010 OF II ADDL. SESSIONS COURT, TRIVANDRUM CMP.4585/2009 OF CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): --------------------- 1. SRI. GEORGE MATEW, EXECUTIVE-MARKETING CORDIAL FOUNDATION, VAZHUTHACAUD, THIRUVANANTHAPURAM-695001. 2. N.MOCHANIYEN UNNITHAN, PARTNER, M/S. CORDIAL COMPANY, SIVASAKTHI, VALIYA VEEDU LANE, MANNARAKONAM,VATTIYOORKAVU.P.O. THIRUVANANTHAPURAM-695013. 3. SRI. N.AYYAPPAN UNNITHAN,PARTNER, M/S. CORDIAL COMPANY, SREEVALSOM, MARUTHANKUZHY, KANJIRAMPARA.P.O.,THIRUVANANTHAPURAM-695030. 4. SRI. N.VIJAYAN UNNITHAN, PARTNER, M/S. CORDIAL COMPANY, V-VIHAR, MADATHIL LANE, CIT ROAD, KARAMANA.P.O., THIRUVANANTHAPURAM-695002. 5. N.DHANANJAYAN UNNITHAN, PARTNER, M/S. CORDIAL COMPANY, DANUSS, KODUNGANOOR.P.O., VATTIYOORKAVU,THIRUVANANTHAPURAM-695013. BY ADV. SRI.M.M.SAIDU MUHAMMED SMT.REENA MATHEW (THEVALAKKATTU) RESPONDENT(S): ------------------------- 1. SRI. K.VIJAYAKUMAR, KKRA NO.110, CHAITHRAM, KODIYILKONAM NAGAR, KARIAVATTAM.P.O., THIRUVANANTHAPURAM-695002. 2. SRI. C.V. RAJESH, SR.EXECUTIVE-MARKETING CORDIAL DEVELOPERS & BUILDERS PVT. LTD., VAZHUTHACAUD, THIRUVANANTHAPURAM-695001. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.424 of 2011 ==================================== Dated this the 24th day of February, 2011 O R D E R Petitioners are accused Nos.2 to 6 and respondent No.2 is the first accused in C.M.P. No.4585 of 2009 of the court of learned Chief Judicial Magistrate, Thiruvananthapuram. That petition was filed by respondent No.1 alleging offences punishable under Sections 406, 420 and 120B of the Indian Penal Code. It concerned an agreement allegedly executed between petitioners who are the partners of a Partnership Firm and the daughter and son-in-law of respondent No.1 regarding allotment of Flat. Learned Chief Judicial Magistrate rejected the complaint (without conducting any inquiry under Section 200 of the Code of Criminal Procedure (for short, “the Code”) observing that the complaint if any ought to have been filed by the daughter and son-in-law of respondent No.1 and on the ground that the dispute involved is of civil nature. Respondent No.1 challenged that order in Crl.R.P. No.57 of 2010. Learned Additional Sessions Judge, Thiruvananthapuram set aside the order of learned Chief Judicial Magistrate and remitted the case to the learned Chief Judicial Magistrate for fresh disposal of the complaint in accordance with law. Learned Additional Sessions CRL.M.C. No.424 of 2011 -: 2 :- Judge observed that in the circumstances of the case rejection of the complaint by the learned Chief Judicial Magistrate at the pre- cognizance stage is illegal and is liable to be set aside. That order is under challenge. Learned counsel contended that allegations are not correct and that the order of learned Additional Sessions Judge cannot be sustained. 2. The accused have no locus standi at this stage to challenge the order of learned Additional Sessions Judge. For, learned Chief Judicial Magistrate has not taken cognizance, conducted inquiry or issued process to the accused. In the inquiry under Sec.200 or 202 of the Code the accused have no role to play. They cannot also challenge learned Chief Judicial Magistrate taking cognizance and conducting inquiry under Sec.200 or 202 of the Code. They can challenge the proceeding only when process is issued to them if they are aggrieved by it and are otherwise entitled to challenge it. In that view of the matter this petition cannot be entertained. Resultantly, this Criminal Miscellaneous Case is dismissed without prejudice to the legal remedy available to the petitioners if and when process is issued to them. THOMAS P. JOSEPH, JUDGE. vsv