IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.MC.No. 1881 of 2009 --------------------------------------- CC.146/2009 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER/ACCUSED: T.P.ABDUL NAZER, AGED 45 YEARS, S/O.T.P.MAHIN, ROYAL LANE, THAKKIL FERRY POST, KASARAGOD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENTS/COMPLAINANT AND STATE: 1. P.M.ABDUL RAHIMAN, S/O.LATE MOHAMMED MUSALIYAR, SHAFAN MANZIL, VIDYANAGAR, MUTHODY POST, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY PP SRI.K.J.MOHAMMED ANSAR FOR R2 ADV. SRI.SOJAN MICHEAL FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1881 OF 2009 -------------------------- ORDER Petitioner is the accused and first respondent, the complainant in C.C.No.146/2009 on the file of Chief Judicial Magistrate's Court, Kasargod. Crime No. 175/2007 of Kasargod Police Station was registered against the petitioner for the offences under Sections 403, 405, 420, 465 and 471 of Indian Penal Code based on the complaint filed by the first respondent. After investigation, Annexure-II refer report was submitted stating that the case is a mistake of fact. First respondent, thereafter, filed Annexure-I protest complaint. When Annexure-I complaint was pending inquiry under Section 202 of Code of Criminal Procedure, by Annexure-IV order dated 25.9.2007, the complaint was dismissed as not pressed stating that complainant was absent, no application and counsel submits that complaint is not pressed. First respondent, thereafter, filed Crl.R.P.No.2/2008 before Sessions Court, Kasargod challenging Annexure-IV order. CRMC 1881/09 2 By Annexure-V order, learned Sessions Judge quashed Annexure-IV order and directed the Magistrate to proceed with the complaint. Learned Magistrate, thereafter, conducted an inquiry under Section 202 of Code of Criminal Procedure and took cognizance of the offence under Section 420 of Indian Penal Code and issued summons to the petitioner. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-I complaint and Annexure-V order contending that Annexure-I complaint does not disclose ingredients of an offence under Section 420 of Indian Penal Code and learned Sessions Judge should not have interfered with Annexure-IV order, when the complaint was dismissed as not pressed. 2. Annexure-V order shows that learned Sessions Judge had called for the records and found that complaint was posted to 5.7.2007 for production of documents and witnesses and as witnesses were not present on that day, it was posted to 2.8.2007 and thereafter to 25.9.2007. Admittedly, first respondent/ complainant was not present on that day. Annexure-IV order shows that no application was filed on behalf of CRMC 1881/09 3 the first respondent. Learned Sessions Judge also recorded that there was no appearance by the complainant. Still, the complaint was seen dismissed as not pressed, even though no endorsement was obtained from the counsel stating that the complaint is not pressed. It is in such circumstances, learned Sessions Judge quashed Annexure-IV order. 3. Learned counsel appearing for the petitioner, relying on the decision of the Apex Court in State of Maharashtra v. Ramdas Shrinivas Naik (AIR 1982 SC 1249), argued that when the Magistrate or the Judge had recorded the proceedings of the day, it cannot be disputed by the parties and only what is recorded by the Magistrate or the Judge could be looked into to decide what transpired on that day. The said principle cannot be disputed. But, the question is whether complaint was not pressed as stated in Annexure-IV order. 4. As cautioned by this Court in several decisions, when a representation is made on behalf of the party, either conceding the claim or not pressing the claim, it is always prudent for the court to get an CRMC 1881/09 4 endorsement from the party or the counsel to that effect. When the proceedings paper itself shows that complainant was not present on 25.9.2007, the case of first respondent that he did not authorise the counsel to not press the complaint could only be accepted. In such circumstances, I find no reason to interfere with Annexure-V order passed by the learned Sessions Judge. 5. Moreover, Annexure-V order was passed as early as on 28.11.2008 and this petition is filed at a very belated stage when the learned Magistrate completed the inquiry under Section 202 of Code of Criminal Procedure and took cognizance of the offence. Still, in the petition, the cognizance taken as such was not challenged. Hence, Annexure-V order cannot be interfered with. 6. Though learned counsel appearing for the petitioner argued that Annexure-I complaint does not disclose ingredients of an offence under Section 420 of Indian Penal Code, on going through Annexure-I complaint, I cannot agree with the submission. Whatever it be, as petitioner has already been summoned to appear before the learned Magistrate and the Magistrate CRMC 1881/09 5 has to follow the procedure provided for warrant trial otherwise than a police report, he is entitled to seek an order of discharge under Section 245 of Code of Criminal Procedure. Petitioner is at liberty to file an application after the evidence of the complainant is recorded under Section 244 of Code of Criminal Procedure and raise all the contentions raised herein before the learned Magistrate and seek an order of discharge. Petition is disposed. 30th October, 2009 (M.Sasidharan Nambiar, Judge) tkv