IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 Crl.MC.No. 165 of 2010(B) ------------------------- CC.173/2008 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .............................. PETITIONER(S) : 3RD ACCUSED: ---------------------- VIJAYAN.T.R., S/O.THATTANPARAMBIL RAGHAVAN, MOORKKANIKKARA, KOZHUKKULLI, THRISSUR. BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT(S) : COMPLAINANT & ACCUSED 1 AND 2: ------------------------ 1. BIJU.N.R., S/O.LATE NADUVATH RAMAN, VALAKKAVU P.O., MULAYAM, THRISSUR. 2. T.B.SIVADASAN @ JAYAN, S/O.THATTANPARAMBIL BALAKRISHNAN, KOZHUKKULLI P.O., MOORKKANIKKARA, THRISSUR. 3. SURESH.M.M., S/O.MENAKATHU MADHAVAN, KUNNANGATTUKARA P.O., ERAVIMANGALAM, THRISSUR. 4. THE STATE OF KERALA, REP.BY PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.P.SANTHOSH (PODUVAL) FOR R1 SMT.R.RAJITHA FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AMV CRMC NO.165 OF 2010 (B) APPENDIX PETITIONER(S) ANNEXURE : A.1 : COPY OF THE COMPLAINT IN S.T.NO.3886 OF 2005 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR, DATED 30.03.2005. A.2 : COPY OF FINAL REPORT IN CRIME 208/07 OF JUDICIAL FIRST CLASS MAGISTRATE COURT III, THRISSUR. A.3 : COPY OF THE COMPLAINT IN C.C.NO.173 OF 2008 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THRISSUR, DATED 11.05.2007. RESPONDENTS' ANNEXURE : NIL /TRUE COPY/ P.A.TO JUDGE AMV N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.165 of 2010 ---------------------------------------------------- Dated this the 17th day of November, 2011 Order The petitioner is the third accused in CC No.173 of 2008 on the file of JFCM Court-III, Thrissur. Annexure A3 complaint was filed by the first respondent against this petitioner and two others alleging commission of offences under Sections 406, 420, 417, 465, 468 and 471 r/w 34 IPC. That complaint was forwarded to the police for investigation under Section 156(3) Cr.P.C. After conducting investigation, a final report was filed by the police referring the case as false. On receipt of notice, the complainant filed the protest complaint before court. His sworn statement was recorded by the learned Magistrate. No other witness was examined. The learned Magistrate took cognizance of the offences as mentioned above. 2. The learned counsel for the petitioner would submit that the petitioner had earlier filed a complaint against the first respondent herein alleging commission of offence under Section 138 of the N.I.Act after complying with the procedure prescribed. Crl.M.C.165/2010 2 After receipt of the summons in that case, Annexure A3 complaint was filed. The learned counsel for the petitioner submits that even as per the averments in the complaint, no offence of forgery or anything of that sort of can be discerned. It is pointed out that, according to the first respondent, he had handed over a signed blank cheque to the first accused in CC No.173 of 2008 and it was filled up by the petitioner herein and the second accused in CC No.173 of 2008 and thus forgery was committed. According to the petitioner, the filling up of a signed cheque cannot attract the offence of forgery. Anyway, it is not necessary to probe into that aspect now. The learned counsel for the first respondent would submit that the refer report filed by the police itself will make it clear that the police officer has not applied his mind since the facts mentioned in the refer report are totally against the case averred in the complaint, especially as to the borrowing of money. The learned counsel further submits that as the learned Magistrate took cognizance of the offence after the sworn statement of the complainant was recorded, it has to be presumed that the learned Magistrate has applied his mind and also considered the refer report filed by the police. Crl.M.C.165/2010 3 3. The aforesaid argument is resisted by the learned counsel for the petitioner. The learned counsel for the petitioner would submit that in spite of the fact that after investigation, the police officer referred the case as false, the learned Magistrate has not considered that aspect at all since in the impugned order, the learned Magistrate has only stated: “complainant absent and represented; complaint is taken on file as CC 173/08 under Sections 406, 420, 465, 468 and 471 r/w 34 IPC.” Therefore, there is nothing in the impugned order to state that the learned Magistrate has applied its mind. When the police officer referred the case as false and if the learned Magistrate chooses to take the complaint on file based on the protest complaint, then certainly the learned Magistrate may have to state why the refer report is not accepted and why the learned Magistrate has chosen to take the complaint on file. Both sides have argued at length regarding the merit or demerit of the case advanced by them. But I do not like to venture upon that aspect since I am of the view that the impugned order as per which cognizance of the offence was taken has to be set aside and the matter has to be sent back to the learned Magistrate. Crl.M.C.165/2010 4 4. In the result, this Crl.M.C. is allowed to the extent indicated below: The impugned order as per which cognizance was taken is set aside. The learned Magistrate will consider the sworn statement of the complainant and also the refer report and any other evidence that may be brought on record subsequently. But the oral statements/sworn statements, if any, shall be only in tune with Annexure A3 complaint and no new case shall be allowed to be introduced. It is also made clear that this order will not in any way affect the progress of the case filed under Section 138 of the N.I.Act and the proceedings taken thereon. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.165/2010 5 Crl.M.C.165/2010 6