IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.MC.No. 3347 of 2008() ------------------------------------- (C.C.NO.53/2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THALASSERY) PETITIONERS: ACCUSED: --------------------------------------- 1. A.P.PRADEEP, S/O.BALAN, PRABHA, P.O.PALLIKUNNU, KANNUR DISTRICT. 2. A.P.PRAKASHAN, S/O.BALAN, PRABHA, P.O.PALLIKKUNNU, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENTS: COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.K.MUKUNDAN, S/O.KANNAN, APARNA, KALLADATHODE, AZHECODE SOUTH, KANNUR DISTRICT. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3347 of 2008 ------------------------------------------------- Dated this the 3rd day of September, 2008 ORDER The petitioners face indictment as accused in a prosecution initiated by the respondent/complainant, inter alia, under Sec.420 IPC. The petitioners, along with the complainant, were partners of a partnership firm. According to the petitioners, the complainant had retired from the partnership firm. They, along with another, had executed release agreement as both of them were retiring from the partnership. Annexure-A1 is said to be the release agreement so executed by the retiring partners including the respondent/complainant. It is the case of the petitioners that suppressing Annexure-A1 agreement completely and raising totally false and vexatious allegations against them, a private complaint has been filed by the respondent/complainant before Crl.M.C. No. 3347 of 2008 -: 2 :- the learned Additional Chief Judicial Magistrate, Thalassery. Earlier, the petition was filed before the police and the police, after due investigation, had referred the said complaint. Without proper application of mind, cognizance has been taken of the offence allegedly committed by the petitioners. In these circumstances, it is prayed that this petition may be allowed and the prosecution initiated against the petitioners may be quashed. 2. To put it in a nutshell the contention is that in the light of Annexure-A1 agreement the prosecution cannot lie. The complainant can be contradicted with Annexure-A1 agreement and if Annexure-A1 agreement is found to be genuine, the complainant is guilty of fraudulent suppression of facts in the complaint. 3. I am afraid that at this stage of Sec.482 Cr.P.C. this contention cannot be accepted. I need only mention that I have gone through Annexure-A1 and have specifically referred to the signatories in the agreement. At the moment and with the available inputs, a specific conclusion that Annexure-A1 can be acted upon cannot, at any rate, be entered. Annexure-A1 cannot be reckoned as material of “sterling quality” of which cognizance can be taken at the stage of Sec.482 Cr.P.C. It is for the petitioners to raise appropriate contentions before the learned Crl.M.C. No. 3347 of 2008 -: 3 :- Magistrate to claim discharge under Sec.245(2)/245(1) Cr.P.C. or acquittal at later stages on the strength of Annexure-A1. I am, in these circumstances, satisfied that the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. does not deserve to be invoked. 4. The learned counsel for the petitioners submits that the petitioners will be put to great hardship, inconvenience, prejudice and loss if the learned Magistrate were to insist on their personal presence for further proceeding in the matter. Both petitioners are abroad, it is submitted. I can see no possibility of any dispute regarding identity. In the facts and circumstances of this case, the petitioners can certainly appear through their counsel before the learned Magistrate and seek exemption under Sec.205/317 Cr.P.C. Such petition must be considered favourably by the learned Magistrate and unnecessary insistence on personal appearance of the petitioners should not be made by the learned Magistrate. The learned Magistrate can consider the plea for discharge under Sec.245(2) Cr.P.C. Until a decision is taken on the question of framing charge under Sec.246 Cr.P.C., the petitioners, if they apply through their counsel, can be permitted to appear through their counsel and participate in the proceedings. Their personal Crl.M.C. No. 3347 of 2008 -: 4 :- presence need be insisted only if the learned Magistrate finds that the charges are liable to be framed under Sec.246 Cr.P.C. 5. With the above observations, this Crl.M.C. is dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge