IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.MC.No. 3958 of 2010() ----------------------------------- CC.563/2009 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... PETITIONER(S): ACCUSED 1 & 2 ---------------------------------------------- 1. PRAKASAN.M., AGED 45 YEARS, S/O.KUNHIRAMAN K., P.T.TEACHER, G.S.B.S.SCHOOL, KUMBALA, KASARAGOD. 2. V.V.PRAMEELA, AGED 38 YEARS, W/O.PRAKASAN.M., P.T.TEACHER, G.W.L.P.SCHOOL, KUNTANKARADUKA, P.O.KUMBALA, KASARAGOD. BY ADV. SRI.S.JIJI RESPONDENT(S): STATE, DEFACTO COMPLAINANT ---------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTING S.I. OF POLICE, KUMBALA POLICE STATION, KASARAGOD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SURESH M.GUNJIKAR, AGED 44 YEARS, S/O.MURALEEDHAR GUNJIKAR, PARAKKILA HOUSE, MADHUR VILLAGE P.O., KASARAGOD, PIN - 671 124. R1 BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3958 OF 2010 --------------------------------------------- Dated 28th September, 2010 O R D E R Petitioners are the accused in C.C.563/2009 on the file of Judicial First Class Magistrate's Court-I, Kasaragod taken cognizance for the offence under Sections 403, 415 and 417 read with Section 34 of Indian Penal Code on Annexure-1 protest complaint filed by the second respondent. On receipt of summons issued under Section 204 of Code of Criminal Procedure petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that the dispute is entirely civil dispute and ingredients of the offence are not attracted. 2. Learned counsel appearing for Crmc 3958/10 2 the petitioners was heard. 3. Learned Magistrate has taken cognizance of the offence on Annexure-1 protest complaint filed by the second respondent as a refer report was filed by the Investigating Officer. Though learned counsel contended that the cognizance taken is to be quashed, even the order taking cognizance is not produced. 4. On hearing the learned counsel, I find no reason to quash the proceedings, as the petitioner is entitled to seek an order of discharge under Section 245(1) of Code of Criminal Procedure, after recording the evidence of the complainant and his witnesses as provided under Section 244 of Code of Criminal Procedure. If the grievance of the petitioner is that in that event petitioners may have to appear before the learned Crmc 3958/10 3 Magistrate on all posting dates, it could be avoided by permitting them to file a petition under Section 205 of Code of Criminal Procedure before the learned Magistrate. Petition is disposed granting liberty to the petitioners to raise all the contentions raised herein before the learned Magistrate and seek an order of discharge under Section 245(1) of Code of Criminal Procedure. Petitioners are also at liberty to file a petition under Section 205 of Code of Criminal Procedure, to dispense with their presence for that purpose. If such an application is filed, learned Magistrate not to insist for the presence of the petitioners for considering the prayer for discharge. M.SASIDHARAN NAMBIAR, JUDGE. uj.