IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Crl.MC.No. 2082 of 2009() ------------------------- CC.505/2009 of JUDL.1ST CLASS MAGISTRATE COURT II, KOTTARAKKARA .................... PETITIONER(S): ACCUSED NO.1 & 2: ------------------------------------------------------- 1. VISHUNU NAMPOOTHIRI, S/O.EASWARAN NAMPOOTHIRI, AGED 39 YEARS, UZHITHRAPPALLY, `PRANAVAM', THEVANNOOR MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK. 2. SREELATHA DEVI, W/O.VISHNU NAMPOOTHIRI, AGED 34 YEARS, UZHITHRAPPALLY, `PRANAVAM', THEVANNOOR MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK. BY ADVS. MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. AJITHKUMAR @ UNNI, S/O.SUGATHAN, PUTHENVILA VEEDU, KATTADI P.O., POOYAPPALLY, KOTTARAKKARA. 3. P.A.BABU, SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, POOYAPPALLY, KOLLAM DISTRICT. BY PUBLIC PROSECUTOR MR. VINOD.B. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2082 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of July, 2009 O R D E R Petitioners are accused in CC No.505/09 on the file of Judicial First Class Magistrate Court-II, Kottarakkara. Second respondent is the defacto complainant. Annexure-5 complaint was filed by the second respondent alleging that petitioners have committed offences under Sections 406, 420, 468 and 471 r/w Section 34 of Indian Penal Code. Learned Magistrate forwarded the complaint for investigation under Section 156(3) of Code of Criminal Procedure. After investigation, Annexure 6 final report was filed which was taken cognizance by the learned Magistrate for offences under Sections 406, 420, 468 and 471 r/w Section 34 of Indian Penal Code. 2. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that it is only an abuse of process and ingredients of the offence is not made out and even if petitioners are to be tried based on Annexure-6 final report, they cannot be convicted, therefore, the case is to be quashed. 3. Learned counsel appearing for the petitioner was heard. The argument of the learned counsel is that on 10.06.08 second respondent borrowed Rs.67 lakhs from the first petitioner and when Crl.M.C: 2082/09 -:2:- the amount was demanded on 10.10.08, a post dated cheque of 04.12.08 for Rs.67 lakhs dated 04.12.2008 was issued and 1st petitioner presented the cheque on 04.12.08 and it was dishonoured for want of sufficient funds and on 06.12.08, OS No.320/08 evidenced by Annexure-1 complaint was filed before Sub Court, Kottarakkara and on 09.12.08 Annexure-2 order of conditional attachment was passed and thereafter on 09.12.08 second respondent sent Annexure 3 notice as if it was sent on 05.12.08 and a reply notice was sent by the petitioner on 17.12.08 and thereafter Annexure-5 private complaint was filed on 22.12.08, which was forwarded to the police for investigation based on which the FIR was registered on 24.12.08 and on 10.01.09 without proper investigation a final report was filed which was taken cognizance. The learned counsel argued that Annexure-3 notice does not disclose the allegations in Annexure-5 complaint and therefore it is clear that Annexure-5 complaint was later filed concocting a false story and the learned Magistrate should not have taken cognizance of the offence and it is to be quashed. 4. On hearing the learned counsel, I find that this is not a fit case to exercise the extraordinary jurisdiction of this Court under Crl.M.C: 2082/09 -:3:- Section 482 of Code of Criminal Procedure, to quash the complaint. Though the learned counsel relied on Annexure-3 notice sent by the second respondent pointing out the allegations raised in Annexure-5, based on the materials now produced, it cannot be said whether on the date when instructions were given by the second respondent to send Annexure-3 notice he was aware of Annexure-2 suit or the demand made under the dishonoured cheque. In such circumstances based on that fact alone, it is not possible to quash the proceedings. Petitioners are entitled to file an application for discharge under section 239 of Code of Criminal Procedure before the trial Magistrate. With that liberty this petition is disposed of. If petitioners file an application to dispense with their presence, at the time of filing and hearing of the petition under Section 239 of Code of Criminal Procedure, learned Magistrate to dispense with their presence. M. SASIDHARAN NAMBIAR, JUDGE ttb