IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 Crl.MC.No. 181 of 2011(A) ------------------------------------ [CC.NO.571/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, HOSDRUG] .................... PETITIONERS/ACCUSED NOS.2 & 3: ---------------------------------------------------- 1. T.M.A. SULAIMAN, AGED 35 YEARS, S/O.LATE A.R.KAREEM, R/AT VADEKKEPRAM P.O.PADNE, HOSDURG TALUK, KASARAGOD DISTRICT 2. T.M.A.ARIF, AGED 30 YEARS,S/O.LATE A.R.KAREEM, R/AT VADEKKEPRAM, P.O. PADNE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.K.P.HARISH, SMT.M.SHAZIA SULTHANA. RESPONDENTS/STATE & DEFACTO COMPLAINANT: --------------------------------------------------------------------------- 1. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM – 682 031. 2. V.K.AHMAD, AGED 63 YEARS, S/O.MUHAMMED, R/AT VADEKKEPRAM, P.O. PADNE, HOSDURG TALUK, KASARAGOD DISTRICT. PIN – 671 001. R1 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.181 of 2011 --------------------------------------- Dated this 27th day of January, 2011 ORDER Petitioners are accused Nos.2 and 3 in C.C.No.571 of 2010 of the court of learned Judicial First Class Magistrate-I, Hosdurg, facing trial for offences punishable under Sec.420 r/w sec.34 of the Indian Penal Code. The case was initiated on a complaint preferred by respondent No.2 and forwarded to the police for investigation under Sec.156(3) of the Code of Criminal Procedure (for short, “the Code”). Chandera police registered Crime No.422 of 2009 and after investigation submitted final report against petitioners and accused No.1 for offences above stated. It is contended by the learned counsel that even as per records produced by the prosecution no offence as alleged is made out against petitioner. According to the learned counsel records produced by the prosecution would show that alleged inducement was made by the first accused and that petitioners had nothing to do with the alleged incident. 2. Annexure-A1, complaint filed by respondent No.2 states that in October 2008 the accused (meaning thereby petitioners as well) made respondent No.2 believe that they will Crl.M.C.No.181 of 2011 -: 2 :- procure visa to Japan for a job with salary of Rs.One Lakh per month, first accused is working in Japan, they made respondent No.2 believe that he is working in a famous company in that country, he is able to arrange visa and that the said company required several persons as employees. In the light of the said inducement, respondent No.2 gave Rs.Five Lakhs to petitioner No.1 in the presence of accused No.3. It is the further case of respondent No.2 that the accused (including petitioner) promised that an agreement will be given by the first accused who then had been to Bombay. Accordingly on 20.01.2008 first accused executed an agreement promising to arrange visa for the son of respondent No.2 before 30.08.2008 but that did not happen nor was the money returned. Later, petitioners are also said to have made respondent No.2 believe that visa will be made ready before August, 2008. Learned counsel invited my attention to Annexure-2, agreement allegedly executed by the first accused in favour of respondent No.2 where, it is stated that first accused had made respondent No.2 believe that he will arrange visa and accordingly the amount was paid to the petitioners. First accused offered to arrange visa for the son of respondent No.2 before 30.08.2008. Another document relied on by petitioners is Annexure-4, statement allegedly given by petitioners. There also reference is made to first accused. Crl.M.C.No.181 of 2011 -: 3 :- 3. But, averments in the complaint has also to be looked into for the time being. There are allegations concerning the alleged involvement of petitioners also. Whether the allegation is correct or not is not a matter which this court is not required to consider under Sec.482 of the Code. Having gone through the complaint, other materials on record and hearing learned counsel and learned Public Prosecutor I am not persuaded to think that this is a fit case where this court is required to interfere under Sec.482 of the Code. 4. Learned counsel requested that petitioners may be granted permanent exemption from appearance in the trial court under Sec.205 of the Code. Primarily, that is a matter which the trial court has to decide. It is open to the petitioners to move appropriate application in that regard and if any such application is made learned Magistrate shall be dispose of the same as provided under law. It is made clear that it is open to the petitioners to raise all their pleas/defences in the trial court as provided under law at the appropriate stage. This criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-