IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.MC.No. 3299 of 2008() ------------------------- C.C.NO.29/08 OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR PETITIONER(S): ACCUSED 1 AND 2 --------------- 1. UNNIKRISHNAN ,S/O KUMARAN, PANDIYATH HOUSE, NEDUPUZHA DESOM,KOORKANCHERY VILLAGE, THRISUR TALUK. 2. T.B.SAJEEVAN, S/O BHASKARAN, THERKKAYIL HOUSE, KANNIMANGALAM DESOM, KOORKANCHERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) RESPONDENT(S): COMPLAINANT AND STATE --------------- 1. K.K.SAJEEVAN,S/O KUTTAPPAN, KOZHIPARAMBIL HOUSE, VAISSERY DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI ADV. SRI.V.V.ASOKAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3299 of 2008 ------------------------------------- Dated this the 4th day of November, 2008 ORDER Against the petitioners cognizance has been taken on the basis of a private complaint filed by the 1st respondent herein. Cognizance has been taken of the offences punishable, inter alia, under Sections 420 and 468 I.P.C. Altogether there are 3 accused persons in the private complaint. Petitioners are accused 1 and 2. 2. The 1st respondent herein had filed a private complaint initially before the learned Chief Judicial Magistrate against all the 3 accused. That complaint was referred to the police under Section 156(3) Cr.P.C. Crime No.635 of 2001 of Trichur Town East Police Station was registered. Investigation was conducted. Refer report was filed by the police after such investigation. The 1st respondent raised objections and filed a complaint/petition purportedly under Sections 190 and 173(8) I.P.C. That petition was dismissed by the learned Magistrate. The complainant came to this Court and by order dated 07.07.05, Crl.M.C.No.1542 of 2003 filed by the 1st respondent was dismissed with observations. As permitted under that order, the Crl.M.C. No.3299 of 2008 2 1st respondent wanted the complaint filed by him to be prosecuted. In that the 1st respondent examined himself and cognizance was taken on the basis of such sworn statement tendered by the 1st respondent. 3. The crux of the allegations in the complaint is that documents of the property of the 1st respondent was produced by the 1st respondent before the Trichur Urban Co-operative Bank, of which the 3rd accused was the manager. The 1st respondent had placed the title deeds of his property with the bank when the loan was applied for. According to the 1st respondent he had not availed the loan actually though the title deeds were surrendered. The 1st respondent allegedly went abroad and when he came back he realised that loan had actually been availed by someone fraudulently. It is raising these allegations that the complaint was filed. 4. The learned counsel for the petitioners submits that the cognizance taken by the learned Magistrate is absolutely unjustified. The learned Magistrate omitted to note that the police had conducted a proper investigation and a negative final report had already been filed. Even if the learned Magistrate had not chosen to accept the negative final report submitted by Crl.M.C. No.3299 of 2008 3 the police after investigation, he must have alertly applied his mind to the allegations raised in the complaint. Cognizance has been taken without such alert application of mind. No enquiry under Section 202 Cr.P.C. was conducted. Except the first respondent/complainant no other witness was even examined at the stage of Section 200 Cr.P.C. also. 5. The learned counsel for the petitioners submits that there are many suspicious circumstances and the learned Magistrate erred grossly in taking cognizance without properly adverting to the relevant facts. The learned counsel further points out that even though the amendment to Section 202 Cr.P.C. (making S.202 enquiry mandatory when cognizance is taken and process issued against persons residing outside the jurisdiction of the Magistrate) was not in force at the time when the complaint was filed, those provisions had come into existence before cognizance was taken. At any rate, whether with that amendment or without the amendment, the Magistrate is bound to apply his mind to the relevant facts before cognizance is taken. In as much as the police had filed a negative final report, it was incumbent on the Magistrate to apply his mind alertly to all relevant circumstances. That having Crl.M.C. No.3299 of 2008 4 not been done and cognizance having been taken only on the basis of the sworn statement of the complainant, the cognizance taken may be set aside, submits the learned counsel for the petitioners. 6. I find merit in the contentions of the learned counsel for the petitioners. I have been taken through the allegations in the complaint as also the sworn statement of the complainant recorded. In the facts and circumstances of the case, I have no hesitation to agree that the learned Magistrate must have conducted a proper S.202 enquiry whether cognizance was taken before or after the amendment. I am satisfied, in these circumstances, that the order taking cognizance deserves to be quashed. 7. In coming to this conclusion I take note of the circumstance brought to my notice that after the loan was allegedly sanctioned by the bank, the loan amount is shown to have been placed in the account of the complainant and the same is shown to have been withdrawn from the account as per a cheque. No specific allegation is raised that the cheque is a forged cheque, it is submitted. It is also pointed out that as early as on 14.7.1999 the complainant had executed a document Crl.M.C. No.3299 of 2008 5 assigning the property to some strangers notwithstanding the fact that the original title deeds were with the bank. The counsel for the petitioners pointed out to me the judgment dt. 4.3.2008 in WPC 1517 of 2008, to which the complainant herein was a party. I am not embarking on a detailed discussion. Suffice it to say that I am persuaded to agree that sufficient, pointed and riveted attention of the Magistrate does not appear to have been given to the facts in controversy. 8. I am, in these circumstances, satisfied that the interests of justice shall be best served by quashing the order taking cognizance and directing the Magistrate to conduct a proper enquiry under Section 202 Cr.P.C. before a decision is taken under Section 203/204 Cr.P.C. whether to proceed further or not with the complaint. 9. The counsel for the first respondent points out that a connected case (which he describes to be a counter case) is pending before the learned Magistrate against the first respondent herein as C.C.426 of 2002. According to him the two cases deserve to be disposed of simultaneously reckoning them as case and counter case. The first respondent shall be at liberty to bring the relevant facts before the learned Magistrate and Crl.M.C. No.3299 of 2008 6 pray that the two cases deserve to be taken up together for disposal. Appropriate orders on merits shall be passed by the learned Magistrate on such application, if any, filed. 10. In the result: a) This Crl.M.C. is allowed. b) Cognizance taken in C.C.29 of 2008 is set aside. c) The third accused, who is not a party to this proceedings, shall also get the benefit/advantage of this order. d) The learned Magistrate is directed to conduct a proper enquiry under Section 202 Cr.P.C. and pass an appropriate further order under section 203/204 Cr.P.C. (R.BASANT, JUDGE) rtr/-