IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Crl.MC.No. 24 of 2009() --------------------------------- FIR. NO.148/07 OF KADUTHURITY POLICE STATION KOTTAYAM(DISTRICT) IN CMP. 2099/07 IN CC. NO.78/08. .......... PETITIONER(S): (3RD ACCUSED) ---------------------------- MARTIN THOMAS, AGED 30 YEARS, S/O.LATE THOMAS, KADACHIRA VEEDU, VAZHAYADI BHAGAM, KURIMBANADAM P.O. CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, WITH THE PRESENT ADDRESS MARTIN THOMAS, ASHKANY, GENERAL TRADING & COMPANY, KUWAIT. BY ADV. SRI.C.K.SASI RESPONDENT(S): ------------------------- 1. SIMMY MATHEW, S/O.MATHEW VETTOMTHADATHIL VEETIL, OMALLOR BHAGAM, OMALLOOR KARAYIL, MANGIL P.O., KOTHANALLOOR VILLAGE, KOTTAYAM DISTRICT. 2. K.R.MANOJ, SUB INSPECTOR OF POLICE, KADUTHURITHY POLICE STATION, KOTTAYAM DISTRICT. 3. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 24 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2009 O R D E R The petitioner faces indictment in a prosecution for the offence punishable under Section 420 r/w. 34 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. Altogether there were three accused persons. Accused 1 and 2 are spouses. The petitioner/A3 is the brother of the second accused/wife. 2. The crux of the allegations is that the defacto complainant was induced to part with a huge amount of money on the promise that one Sijo, the brother of the defacto complainant, would be made share holder in a company. That part of the cause of action admittedly arose outside India, in Kuwait. 3. There is a further allegation that on 17.4.2007 the third accused came to the native place and contacted the defacto complainant and induced him to part with an amount of Rs. 1.5 Crl.M.C.No. 24 of 2009 2 lakhs (in addition to the amount of Rs.21 Lakhs which was handed over at Kuwait) promising that the defacto complainant shall be furnished with VISA to go abroad. This was allegedly done with fraudulent intention. The amount was not returned nor was VISA made available. 4. On the basis of the private complaint crime was registered and investigation was conducted. Final report has been filed. The petitioner or the other accused have not entered appearance so far. At this juncture the third accused has come before this Court with a prayer that powers under Section 482 Cr.P.C. may be invoked to quash the proceedings against him on two grounds. 5. First of all it is contended that in so far as the transaction that took place at Kuwait is concerned, cognizance taken is in violation of the provisions of Section 188 Cr.P.C. Secondly it is contended that the allegations relating to the incident of cheating in India on 17.4.2007 is totally false and unsustainable and in these circumstances the prosecution deserves to be quashed. Crl.M.C.No. 24 of 2009 3 5. I shall carefully refrain from adverting to facts in any greater detail. It appears to me that there is some substance in the contention that the alleged offence which was committed outside India requires sanction under Section 188 Cr,.P.C. for the purpose of taking cognizance. However, I am satisfied that in respect of the latter incident on 17.4.2007 it is not necessary for the Court to express any opinion and the allegations have to be considered by the court concerned. 6. Premature termination of proceedings can be claimed by an indictee under the ordinary provisions of the Cr.P.C. In a warrant offence, the cognizance in which has been taken on the basis of police report, such premature termination can be claimed under Section 239 Cr.P.C. It is for the Magistrate to consider whether the petitioner is entitled for such premature termination. In an exceptional case this Court does have the extra ordinary inherent under Section 482 Cr.P.C. to quash the proceedings. But compelling and satisfactory reasons must be shown to exist to invoke such jurisdiction. In the facts and circumstances of this case, I am not persuaded to agree that there are Crl.M.C.No. 24 of 2009 4 any compelling reasons which can or should persuade this court to invoke the jurisdiction under Section 482 Cr.P.C. 7. The learned counsel for the petitioner submits that great prejudice, hardship and loss would result if the personal appearance of the petitioner were insisted to enable him to advance this plea for discharge. I am satisfied that while dismissing this petition appropriate direction can be issued under Section 482 Cr.P.C. 4. This Crl.M.C. is accordingly dismissed, but it is observed that it shall be open to the petitioner to approach the Magistrate and seek premature termination by discharge under Section 239 Cr.P.C. When such plea is raised by the petitioner, the learned Magistrate must consider such plea in accordance with law and take appropriate decision on merits in the matter. His contention that the cognizance taken is bad for the reason that no sanction has been obtained under Section 188 Cr.P.C. as also his contention that the allegations relating to the incident on 17.4.2007 are groundless must both be considered by the learned Magistrate at the stage of Section 239/240 Cr.P.C. Crl.M.C.No. 24 of 2009 5 5. In the peculiar facts and circumstances of this case, it is directed that personal presence of the petitioner need not be insisted to consider such plea of discharge. The petitioner can be permitted to appear through pleader and raise his plea for discharge. If the petitioner appears through counsel and is appropriately represented by counsel, the learned Magistrate shall consider such plea without insisting on the personal presence of the petitioner. 6. Hand over the order. (R. BASANT) Judge tm