IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.MC.No. 1491 of 2008() ------------------------- CC.100/2007 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S):3RD ACCUSED: ----------------------- SOMAN, S/O. CHANDRABHANU, PALLATH HOUSE, MARAR ROAD, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): COMPLAINANTS: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (SUB INSPECTOR OF POLICE, THRISSUR TOWN EAST POLICE STATION). 2. THRISSUR URBAN CO-OPERATIVE BANK LTD., REPRESENTED BY BRANCH MANAGER, SAKTHANTHAMPURAN NAGAR BRANCH, THRISSUR. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB ADV. SRI.C.D.DILEEP,SC,TRICHUR URBN CO-OPBAN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/11/2008, A/W. CRMC 4214 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos. 1491 & 4214 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2008 O R D E R The petitioners in these Crl.M.Cs. are accused 2 and 3 in a prosecution for offences punishable, inter alia, under Sections 405, 420 and 468 I.P.C. The said prosecution has been initiated on the basis of a final report submitted by the police after due investigation. Cognizance has been taken. The accused have appeared before the learned Magistrate. They have been enlarged on bail. Charges have not been framed so far. 2. The crux of the allegations is that the first accused, along with the second accused, went before the defacto complainant bank on 31.7.1998 and deposited their title deeds to avail a loan for Rs. 10 lakhs. The first accused is alleged to be the loanee and the second accused, his wife, is alleged to be the surety of the first accused. The title deeds were deposited and mortgage deed was executed later on 26.8.98. An amount of Rs.7.5 lakhs was allegedly paid to the first accused by the bank. Crl.M.C.Nos. 1491 & 4214 of 2008 2 It is the case of the bank that accused 1 to 3 had acted in collusion with dishonest intention. On 10.8.98 accused 1 and 3 had entered into an agreement for sale. The third accused had allegedly advanced an amount of Rs.3.50 lakhs to the first accused. In entering into this transaction the accused persons are said to have acted with dishonest intention to defraud and deceive the bank. This in short is the allegation raised. 3. The learned counsel for accused 2 and 3 submit that they are absolutely innocent and that at any rate the proceedings deserve to be quashed invoking the extra ordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C. They do not deserve to stand the trauma and ordeal of a criminal trial. Proceedings may be brought to premature termination, it is prayed. 4. Premature termination of criminal prosecution can certainly be claimed by indictees in such prosecutions. Ordinarily and normally such premature termination must be claimed according to the ordinary provisions of the Code. In a warrant offence, cognizance in which has been taken on the basis of a police report, such premature Crl.M.C.Nos. 1491 & 4214 of 2008 3 termination must ordinarily be claimed by discharge under Section 239 Cr.P.C. The Magistrate must consider such plea of discharge and take appropriate decision. Not that this Court does not have the jurisdictional competence under Section 482 Cr.P.C. to bring to termination such unjustified prosecution by invoking the extra ordinary inherent jurisdiction, but such powers are not to be invoked as a matter of course. Satisfactory, compelling and exceptional reasons, in the interests of justice, must be shown to exist to justify the invocation of such extra ordinary provisions of the Code. In the facts and circumstances of this case, I am certainly of the opinion that there is no justification or necessity to invoke the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. The parties must be relegated to claim the relief of premature termination under Section 239 Cr.P.C. When such claim is raised, the learned Magistrate must consider the same and take appropriate decision at the stage of Section 239/240 Cr.P.C. 7. This Crl.M.C. is accordingly dismissed. I may hasten to observe that the petitioners shall be entitled to stake their claim for Crl.M.C.Nos. 1491 & 4214 of 2008 4 premature termination by discharge under Section 239 Cr.P.C. and the learned Magistrate must take appropriate decision in the matter. 6. The learned counsel for the petitioners submits that if unnecessary insistence is made on the personal presence of the petitioners till such plea of discharge is considered on merits and decision taken, that would result in great prejudice and hardship. If they are already on bail, the personal presence of the petitioners shall not be insisted by the learned Magistrate and their presence need be insisted only if the learned Magistrate takes the view that charges are liable to be framed under Section 240 Cr.P.C. Till then the petitioners shall be permitted to appear through their counsel. (R. BASANT) Judge tm