IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 998 of 2006() ------------------------ CC.857/2003 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ACCUSED ---------------------- 1. M.L.KARTHIKAI KUMARI, AGED ABOUT 59 YEARS, PLOT NO.G 13, PANAMPILLY NAGAR, MANAGING PARTNER, BRILLIANT EXPORTS, PALLURUTHY. 2. M.SELVAKUMAR, PLOT NO.G 13, PANAMPILLY NAGAR, BRILLIANT EXPORTS, PALLURUTHY. 3. R.DEVAKUMAR, PLOT NO.G 13, PANAMPILLY NAGAR, BRILLIANT EXPORTS, PALLURUTHY. 4. SREEKUMAR, PLOT NO.G 13, PANAMPILLY NAGAR, BRILLIANT EXPORTS, PALLURUTHY. 5. SIVAKUMAR, PLOT NO.G 13, PANAMPILLY NAGAR, BRILLIANT EXPORTS, PALLURUTHY. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S): COMPLAINANTS --------------------------- 1. SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. 2. M.A.K.AGRO COMMODITIES TRADING CO.LTD., G-211, PANAMPILLY NAGAR, MAIN AVENUE, PANAMPILLY NAGAR, COCHIN-36, REPRESENTED BY ITS MANAGING DIRECTOR, M.A.K.AZAD. 3. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.998 of 2006 ----------------------------------- Dated this the 15th day of February, 2010 ORDER This petition is filed to quash the charge laid by the first respondent against petitioners alleging offences under Sections 406, 420 and 120B IPC. Petitioners are five in numbers. A complaint was filed against petitioners before Magistrate Court and as per the allegations made in the complaint, accused received an amount of Rs.66,05,000/- from second respondent over a period of 20.12.2000 to 7.3.2001. Towards the discharge of the said amount, certain cheques were issued for different amounts. Petitioners allegedly cheated the complainant since cheque bounced on presentation to the bank. This was done in pursuance to a conspiracy hatched among the accused. The complaint was forwarded to the investigation under Section 156 (3) Cr.P.C. On completion of investigation, a charge sheet was filed before the Chief Judicial Magistrate Court, Ernakulam and the case was taken on file. Learned counsel for petitioner submitted that the charge for criminal breach of trust and cheating will not lie together. It is also submitted that factually, offence under Section 420 and 406 2 will not lie. There is no entrustment of any amount to the petitioner and no agreement is also executed between the parties. If at all the entire allegations are proved there is only a civil liability it is argued. Learned Public Prosecutor argued that there are sufficient materials in the case records to prima facie establish the various charges against the petitioner. It is also submitted that there is no legal bar in prosecuting the accused for both offences under Section 420 and 406 IPC. It is also submitted that if petitioners have an arguable case, they may approach the trial court for discharge. On hearing both sides and on going through the available records, I do not find it proper to hold at this stage that the court below committed a mistake in taking cognizance of the various offences. The entire records are not before me to appreciate the contentions raised. Unless the whole records are perused it cannot be said that there are no materials to presume the offences. If petitioners can establish that there are no sufficient materials on record to presume the guilt of the 3 offences under Section 406, 420 and 120B, they may approach the trial court for discharge. Anyway, in the absence of all the materials before this court, I find that it is not proper to quash the proceedings. A charge can be framed if the court finds that from the records placed before trial court, the court can presume commission of the alleged offences by accused. Hence, I do not find that there is any scope for interference under Section 482 Cr.P.C. Petition is disposed of accordingly. K.Hema, Judge cms