IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 Crl.MC.No. 559 of 2006() ------------------------ CC.88/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... PETITIONER: ACCUSED. -------------------- C.K.PEETHAMBARAN, S/O.KUNJU, MALAYAMKUNNEL HOUSE, PROPREITOR, UNEMPLOYED INDUSTRIAL CONCERN, VALARA P.O. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENTS: COMPLAINANT. ------------------------- 1. THE JUDICIAL FIRST CLASS MAGISTRATE, ADIMALY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.559/06 IN CRL.M.C.559/06 DISMISSED 6.6.08 SD/- (M.C.HARI RANI, JUDGE) M.C.HARI RANI J. ----------------------------------------------------- CRL.M.C.No. 559 OF 2006 ----------------------------------------------------- DATED THIS THE 6th DAY OF JUNE, 2008 O R D E R The petitioner herein was the complainant in C.C.No.295/02 on the file of the Judicial First Class Magistrate's Court, Admilay filed under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. At the time of trial of the proceedings before the Magistrate's Court, the petitioner herein as the complainant before the concerned court filed an affidavit in proof of his case along with Exhibit P6 acknowledgment card evidencing receipt of notice issued at the instance of the complainant to the accused in that case. In that affidavit, it was averred by the complainant that the notice issued to the accused was received by the accused in C.C.No.295/02 on 28.5.2002, to make it appear that the accused actually received the notice, the original of Exhibit P4 on 28.5.2002. But the accused actually put his signature in Exhibit P6 on 28.5.2002. On a perusal of Exhibit P6, it was found by the complainant/Judicial First Class Magistrate, Adimaly that the date was altered in Exhibit P6 to 28.5.2002 by adding '2' to the left of '8' which shows the date of receipt of notice to make it believe that it was received by the accused in C.C.No.295/02 on 28.5.2002. Accordingly, the learned Magistrate CRL.M.C.No. 559/06 -2- initiated action against the complainant in C.C.No.295/02 under sections 195 (1)(b) read with Section 340 Cr.P.C. Certified copy of which is produced as Annexure A to this petition. The petitioner herein has filed this petition to quash that order of the Judicial First Class Magistrate's Court, Adimaly and the proceedings in C.C.No.88/05 initiated against him and pending before that court. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. It is argued by the learned counsel appearing for the petitioner that the learned Magistrate has not issued any notice to the petitioner before taking action under the provisions of Section 340 of Cr.P.C. wherein such a procedure is absolutely mandatory. It is also argued by the learned counsel for the petitioner that the acknowledgment card, Exhibit P6 was received by his counsel and the alterations cannot be attributed to the petitioner. Further, no opportunity has been given to the petitioner herein to explain his stand before initiating the proceedings under Section 195(1)(b) read with Section 340 Cr.P.C. The learned counsel has relied on the decision reported in Kishori Lal and another v. State of Rajasthan and another (1999 Crl.Law Journal 840). It is submitted by the learned Public Prosecutor that all the mandatory requirements under Section 340 of the Code of Criminal Procedure has been complied with by the learned Magistrate before initiating proceedings against the petitioner herein and this petition is liable to be dismissed. CRL.M.C.No. 559/06 -3- 3. On a perusal of the records available before this Court and also the complaint of the complainant before the Judicial First Class Magistrate's Court, Adimaly, Annexure A produced along with this petition, it is revealed that a preliminary enquiry has been conducted by the learned Magistrate and the list of documents has been appended along with the complaint which includes Exhibits D1 and D2, that is, the relevant portion in the Branch Office journal of the concerned Post Office. Undoubtedly, under Section 482 of Cr.P.C., this Court has all such powers as are necessary to do the right and to undo the wrong in the course of administration of justice. This inherent jurisdiction has to be exercised sparingly, carefully and with caution. In other words, if the initiation or continuance of any proceedings amounts to abuse of the process of the court, such proceedings can be quashed under Section 482 of the Cr.P.C. Whether any offence has been committed by the accused therein is yet to be decided. This Court cannot give a prima facie decision on that point. So, the allegations made against the complainant cannot be the basis for quashing the proceedings as prayed for in this petition. The complainant before the Judicial First Class Magistrate's Court, Adimaly has already taken cognizance of the offence and initiated proceedings against the petitioner herein. It is held in the decision reported in Pritish v. State of Maharashtra (AIR 2002 SC 236) that: “ If the Court finds it necessary to take a preliminary inquiry to reach such a finding, it is always open to the CRL.M.C.No. 559/06 -4- Court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the Court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub- section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.” In these circumstances, I find that there is no merit in the allegations in this petition and this petition is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn