IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 Crl.MC.No. 2293 of 2009() -------------------------------------- CC.151/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KOLLAM .................... PETITIONER/COMPLAINANT: ------------------------------------------ MATHEW G., MUKKANDATHU HOUSE, NEDUMPAIKUKLAM, KUNDARA, KOLLAM. BY ADV. SRI.K.BABU RAJAN, SRI.P.SAJEEV BABU, SRI.SREEKANTH S.NAIR. RESPONDENTS/STATE & ACCUSED: ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY S.H.O., KUNDARA POLICE STATION, (THROUGH) THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GIRIJA, D/O. RUGMINI AMMA, KIZHAKKEKUNNATHU VEEDU, PUNUKKANNOOR, ELAMPALLOOR, KUNDARA, KOLLAM. R1 BY PUBLIC PROSECUTOR MR.P.A. SALIM. R2 BY ADV. SRI. K.SHAJ, SRI.SAJJU.S. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/10/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C No.2293 of 2009 -------------------------- Dated this the 20th October, 2010 O R D E R Petitioner is the second accused in C.C No.151/2008 on the file of Judicial First Class Magistrate Court-I, Kollam taken cognizance for the offences under Sections 451, 506 (1), 294 (6) and 420 r/w 34 of Indian Penal Code and Sections 13 and 17 of Kerala Money Lenders Act on Annexure F final report filed in Crime No. 652/2007 of Kundara Police Station. That crime was registered based on Annexure-C complaint filed by the second respondent, defacto complainant before Judicial First Class Magistrate Court-I, Kollam and sent for investigation under Section 156 (3) of Code of Criminal Procedure. Petitioner had sent Annexure-A notice demanding the amount covered by the dishonoured cheque dated 23.5.2007 to the second respondent on 5.7.2007. As the amount was not paid alleging that she committed an offence under Section 138 of Negotiable Instruments Act, the complaint was filed before Judicial First Class Magistrate -I, Kollam. It was taken cognizance and is now pending as CC No.1238/2007. Crl.M.C No.2293 of 2009 2 Annexure-C complaint was filed subsequent to the receipt of Annexure-A notice on 10.8.2007. The case of the petitioner is that Annexure C complaint was filed just to wriggle out of the case initiated by the petitioner for the offence under Section 138 of Negotiable Instruments Act and if the allegation is true, she would have preferred a complaint immediately after the alleged incident on 22.7.2007. The allegation in Annexure-C complaint is that petitioner, along with the other accused, committed house trespass demanding the balance amount of Rs.10,000/- out of Rs.50,000/- borrowed, and using abusive language created a fear in the mind of the second respondent that she will be murdered and got a cheque written for Rs.70,000/- and thereby committed the offences. The cheque which was presented by the petitioner was dishonoured, based on which CC No.1238/2007 was registered which is pending. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings. 2. Learned counsel appearing for the petitioner, Crl.M.C No.2293 of 2009 3 second respondent and learned Public Prosecutor were heard. 3. Though learned counsel appearing for the petitioner vehemently argued that Annexure-C complaint itself was filed subsequent to the receipt of Annexure-A notice demanding the amount covered by the dishonoured cheque, the case set up in Annexure -C is improbable and cannot be believed, it is not for this Court to appreciate the evidence and decide the probability exercising the jurisdiction under Section 482 of Cr.P.C. Petitioner is entitled to raise all the contentions before the learned Magistrate. 4. Learned counsel then submitted that petitioner may be permitted to raise all the contentions raised herein before the learned Magistrate. It is also submitted that as both the cases are intrinsically connected both cases are to be tried by the same court and therefore a direction may be issued. 5. Learned counsel appearing for the second respondent also submitted that second respondent has no Crl.M.C No.2293 of 2009 4 objection for both the cases being tried by the same Court. In such circumstances, petition is disposed permitting petitioner to raise all the contentions raised herein before the learned Magistrate. If CC 1238/2007 is before another Magistrate, as the case is to be tried by the same Magistrate who is trying CC 151/2008, concerned Magistrate shall forward that case to the other court, where C.C. 151/2008 is pending. M.SASIDHARAN NAMBIAR JUDGE ma