IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.MC.No. 3356 of 2009() ------------------------- CC.715/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER(S): ACCUSED 2&3: --------------------------- 1. AYILAM UNNIKRISHNAN, NISHA NIVAS, PANGAPPARA P.O., THIRUVANANTHAPURAM DISTRICT. 2. U.S.RAJESH, NISHA NIVAS, PANGAPPARA P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. B.S.GIRIJA KUMARI, SREEVILAS, POWDIKONAM, THIRUVANANTHAPURAM, (CLERK, THE CO-OPERATIVE HOUSING CONSTRUCTION AND MORTGAGE SOCIETY LTD., NO.T.128, N.C.C.ROAD, AMBALAMUKKU, THIRUVANANTHAPURAM) 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. R2 by PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3356 OF 2009 ------------------------------------------ Dated 19th October 2009 O R D E R Petitioners are the accused 2 and 3 in C.C.715/2005 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram taken cognizance for the offence under Sections 379, 465, 468, 471 and 120 B read with Section 34 of Indian Penal Code on Annexure-I complaint filed by first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that first respondent was the accused in C.C.251/2002 filed by second petitioner herein and C.C.123/2003 complaint filed by first petitioner, alleging that first respondent committed offence under Section 138 of Negotiable Instruments Act. It is contended that evidenced by Annexures-II and III judgments in those cases first respondent had raised the same contentions as raised in Annexure-I complaint and the learned Magistrate did not accept the contentions and in the light of Annexures-II and III judgments, continuation Crmc 3356/09 2 of the proceedings is only an abuse of process of court. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that even though appeals are pending against Annexures-II and III judgments, only the sentence was suspended and so long as conviction in Annexures-II and III are not varied or modified, petitioners cannot be convicted, even if they are tried and therefore, the proceedings is to be quashed. 4. When admittedly appeals are pending as against Annexures-II and III judgments, it cannot be said that criminal case pending before the learned Magistrate is to be quashed, based on the findings in the said judgments. If ultimately appeals are to be allowed and the findings of the learned Magistrate is to be reversed and meanwhile, proceedings before the learned Magistrate is to be quashed, it will not be in the interest of justice at all. Learned counsel then submitted that as Crmc 3356/09 3 second petitioner was not in India he could not appear and seek regular bail, learned Magistrate has issued non bailable warrant and direction may be issued to consider the application for bail on the date of their surrender. Petition is disposed permitting the petitioners to raise all the contentions raised herein at the time of trial. If second petitioner surrenders and files an application for bail, Magistrate to pass appropriate order in accordance with law without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decision of this court or the Apex court or that the Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.