IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.MC.No. 1975 of 2011() ------------------------- CC.629/2009 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... PETITIONER(S): 2ND ACCUSED -------------------------- MUHAMMED SIRAJ, S/O.ABDULLA HAJI, AGED 43 YEARS, ZAKEENATH MANZIL, AZHIKKAL POST- 670009, KANNUR DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, FEROKE POLICE STATION, FEROKE-673631, KOZHIKODE DISTRICT. 2. SAJITHA C.M., W/O.DEVADASAN, PUZHAKKAL HOUSE, MANNUR POST-673328, KADALUNDI, KOZHIKODE DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1975 of 2011 APPENDIX PETITIONER'S ANNEXURES: A1 : CERTIIFED COPY OF PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT - V, KOZHIKODE AS CMP NO. 6457 OF 2008 DATED 22.12.2008. A2 : CERTIFIED COPY OF FIRST INFORMATION REPORT DATED 23/12/2008 IN CRIME NO.656/08 OF FEROKE POLICE STATION. A3 : COPY OF POWER OF ATTORNEY DATED 2.1.2008 EXECUTED BY PETITIONER'S BROTHER IN FAVOUR OF THE PETITIONER. A4 : COPY OF THE ORDER DATED 3.4.2009 IN CMP. NO.198 OF 2009 IN CMP NO.754 OF 2009 IN CRIME NO. 656 OF 2008 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE'S COURT V, KOZHIKODE. A5 : COPY OF FINAL REPORT DATED 30.05.2009 IN CRIME NO.656/08 OF FEROKE POLICE STATION. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE smvd THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1975 of 2011 -------------------------------------- Dated this the 30th day of June, 2011. ORDER The second accused in C.C.No.629 of 2009 of the court of learned Judicial First Class Magistrate-V, Kozhikode is the petitioner before me requesting to quash proceeding against him on the ground that allegations do not make out any case against him. The Feroke Police registered Crime No.656 of 2008 on Annexure-A1, complaint preferred by second respondent for offences punishable under Sections 418 and 420 read with Section 34 of the Indian Penal Code. That case was registered against the first accused alone, initially. In Annexure-A1, complaint the second respondent alleged that as per an agreement for sale with her, the first accused got possession of the vehicle belonging to her agreeing to discharge all liabilities outstanding on the said vehicle but the first accused operated the vehicle for about two years, made profit out of it but failed to discharge liability. While so first accused wanted to go abroad and entrusted vehicle to the petitioner as per a power of attorney (Annexure-A3). Second respondent alleged that first accused has committed offences punishable under Sections 418 and 420 of the Indian Penal Code (for short, “the Act”). In the course of investigation, the Police implicated petitioner as second accused in the case. Learned counsel contended that no case is made out against petitioner. It is pointed out by learned counsel that on 26.12.2006 when the first accused is said to have promised second respondent that he will Crl.MC No.1975/2011 2 discharge liability outstanding on the vehicle and got possession of the vehicle, petitioner was not a party to the said agreement and that the only connection even the Police would allege so far as petitioner is concerned is that he was appointed power of attorney of the first accused when the latter went abroad. According to the petitioner, merely for the reason that petitioner became power of attorney of first accused with whom the second respondent entered into an agreement and in view of non-compliance of that agreement, petitioner cannot be made liable for the offence. It is further pointed out that there is no case that there was any inducement given by petitioner to the second respondent either on 26.12.2006 or at the time first accused executed power of attorney in favour of petitioner and much less, any delivery of property at the time the power of attorney was executed in favour of petitioner. Learned counsel contended that charge against petitioner cannot prima facie stand. I have heard learned Public Prosecutor also. 2. The contentions which the learned counsel has urged on behalf of petitioner could be raised before learned Magistrate at the time of framing charge. It is open to the petitioner to raise all his contentions under Section 239 of the Code of Criminal Procedure and if such contentions are raised learned Magistrate has to consider the same and pass appropriate orders before deciding whether charge is to be framed against petitioner. Resultantly without prejudice to that right of petitioner this Criminal Crl.MC No.1975/2011 3 Miscellaneous Case is closed. Petitioner is granted one month's time from this day to appear before learned Magistrate and seek bail/recall of warrant. The warrant of arrest issued to the petitioner shall stand in abeyance during the said period or till petitioner appears before the learned Magistrate whichever is earlier. Learned Magistrate shall dispose of the application for bail/recall of warrant if preferred as early as possible. THOMAS P.JOSEPH, Judge. cks