IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.MC.No. 366 of 2009() ------------------------ CC.2122/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER(S): ACCUSED ---------------------- JAYAMOHAN, S/O. NARAYANAN NAIR, LEELA VIHAR, ULIYAKOVIL.P.O, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KILIKOLLOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUNIL.R, KALIYILIL PADINJATTATHIL, CHANDANATHOPP.P.O, MEKKONE, KOLLAM. BY P.P. SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.366 of 2009 ------------------------------------------------- Dated this the 28th day of January, 2009 ORDER The petitioner faces indictment in a prosecution for the offence punishable under Sec.420 IPC. Cognizance has been taken on the basis of a final report submitted by the police after due investigation in a crime. The crime, in turn, was registered on the basis of a complaint filed before the learned Magistrate and referred to the police by the learned Magistrate under Sec.156(3) Cr.P.C. The crux of the allegations is that there was a borrowal on 4/10/08. A post dated cheque – 19/10/04, was issued. The said cheque was presented for encashment on 29/11/04. It was dishonoured on the ground of insufficiency of funds and on the ground that the signature varies. On 10/12/04, a notice of demand was issued in which a reply was issued denying all allegations. It is Crl.M.C. No.366 of 2009 -: 2 :- thereafter that the complaint was filed and the crime was registered. 2. According to the petitioner, the allegations against the petitioner are groundless. He is absolutely innocent. He does not deserve to stand the trauma of such an undeserved prosecution. The petitioner was not aware of the registration of such crime or the final report filed. He had received no notice, summons or process from court ever. A warrant of arrest issued by the learned Magistrate is chasing the petitioner. In these circumstances, it is prayed that the proceedings against the petitioner may be quashed invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. 3. I have heard the learned counsel for the petitioner. It is trite that an indictee facing unjustified criminal prosecution is certainly entitled to claim premature termination of proceedings. Ordinarily and normally such premature termination must be claimed in accordance with the ordinary provisions of the Code. In a warrant offence in which cognizance has been taken on the basis of a police report, such premature termination can be claimed ordinarily under the Code by discharge under Sec.239 Cr.P.C. In an exceptional case where the interests of justice compellingly demand such course, this Court definitely has the Crl.M.C. No.366 of 2009 -: 3 :- reservoir of powers under Sec.482 Cr.P.C. to act in aid of justice and bring such prosecution to premature termination. But invocation of the powers under Sec.482 Cr.P.C. cannot be a matter of course. Satisfactory, compelling and exceptional reasons must be shown to insist to justify invocation of such jurisdiction. But, in the facts and circumstances of this case, I am not satisfied that this is a fit case where such extraordinary inherent jurisdiction can or ought to be invoked to bring to premature termination the criminal case in which cognizance was taken as early as in 2005. The petitioner, I am satisfied, must be relegated to claim premature termination by discharge under Sec.239 Cr.P.C. This Crl.M.C. only deserves to be dismissed with appropriate observations. 4. The learned counsel for the petitioner submits that great prejudice, hardship and inconvenience would result if the personal presence of the petitioner were to be insisted by the learned Magistrate to consider the plea of premature termination by discharge. Appropriate observations/directions can be issued. 5. In the result: (a) This Crl.M.C. is dismissed. (b) But I make this specific observation that the petitioner Crl.M.C. No.366 of 2009 -: 4 :- shall be permitted to advance his plea for discharge and such plea must be considered by the learned Magistrate under Sec.239 Cr.P.C. in accordance with law and expeditiously. It is further directed that to consider such plea for discharge, personal presence of the petitioner need not be insisted in the peculiar facts and circumstances of this case. The petitioner shall be permitted to appear through his counsel and stake his plea for premature termination by discharge under Sec.239 Cr.P.C. If he is properly represented by his counsel, the learned Magistrate should not insist on the personal presence of the petitioner till a decision is taken under Sec.239/240 Cr.P.C. (c) Coercive processes issued against the petitioner shall not be executed till 9/2/09. On or before that date, the petitioner shall appear through counsel and stake his claim for discharge. Only if the learned Magistrate feels the charges are liable to framed, need the learned Magistrate insist on the personal presence of the petitioner if he is represented by counsel. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No.366 of 2009 -: 5 :-