IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 1299 of 2009() ------------------------- CC.684/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. M.G. GOPINATHAN NAIR, S/O. LATE GOPALA PILLAI, MATHUKKAL HOUSE, KULANADA POST, PIN - 689 503. 2. SANTHA GOPINATHAN, W/O.M.G. GOPINATHAN NAIR, MATHUKKAL HOUSE, KULANADA POST, PIN - 689 503. BY MR.M.M.ABDUL AZIZ, SENIOR ADVOCATE, MR.JYOTHISH.J.KALLINGAL, MR.M.A.ABDUL HAKHIM. RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PANDALAM POLICE STATION (CRIME NO. 143/2001) P.O. PANDALAM. R1 & R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1299 OF 2009 ------------------------------------------ Dated 3rd June 2009 O R D E R Petitioners are accused in C.C.684/2001 now pending as L.P.24/2004 on the file of Judicial First Class Magistrate, Adoor. Second petitioner is the wife of the first petitioner. Based on Annexure-A2 private complaint filed by one Prakash alleging that in furtherence of their common intention petitioners committed offence under Section 420 read with Section 34 of Indian Penal Code, Judicial First Class Magistrate directed investigation under Section 156(3) of Code of Criminal Procedure. After investigation Annexure-A3 final report was submitted which was taken cognizance as C.C.684/2001. As the presence of the accused could not be procured the case was transferred to the register of L.P cases. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 complaint and Annexure-A3 final report contending that allegation in the complaint or the material available in Annexure- CRMC 1299/09 2 A3 final report do not disclose the ingredients of the offence under Section 420 of Indian Penal Code and therefore prosecution is only an abuse of process of court and in such circumstances, it is to be quashed. It is also contended that second petitioner, the wife of first petitioner has nothing to do with the allegation raised in the complaint and only first petitioner is having the certificate issued by the Ministry of Labour and Rehabilitation evidenced by Annexure-A1 and in such circumstances, the case as against second petitioner in any case will not lie and is to be quashed. 2. Learned Senior counsel appearing for petitioners was heard. 3. Learned Senior counsel pointed out that in Annexure-A2 complaint what was alleged by the complainant was that after he returned back from Malasia, he approached the petitioners demanding back Rs.75,000/- paid earlier and petitioners agreed to re- pay the same on or before 10/2/2001 and still the amount was not paid and thereby the offence was committed and by reading the complaint as a whole the ingredients of an offence under Section 420 is not at all revealed and therefore, this is a fit case where CRMC 1299/09 3 to secure the ends of justice, the complaint and further proceedings are to be quashed. 4. When a petition is filed to quash the complaint or final report the question is whether the allegations in the complaint or the materials produced along with the final report is accepted as a whole, ingredients of the offence is made out or not. Evidence cannot be appreciated to find whether there is possibility of a conviction. Annexure-A2 complaint contains specific allegations that with the dishonest intention to cheat petitioners obtained Rs.75,000/- from the complainant and thereafter utilised it for their own purpose and thereby committed the offence. If that case is to be accepted as correct, it cannot be said that ingredients of the offence under Section 420 is not made out. Therefore, complaint cannot be quashed as sought for. 5. Learned Senior counsel then argued that as against second petitioner complaint will not lie. Even on that aspect complaint is to be appreciated as a whole and if what is alleged in the complaint is to be accepted, complainant was persuaded to part with the money in furtherance of their common intention to cheat. In such circumstances, prosecution as against CRMC 1299/09 4 second petitioner also cannot be quashed. 6. Learned Senior counsel then submitted that case is now pending in L.P register and non bailable warrant is subsisting and if the petitioners are to surrender the Magistrate would remand them and therefore a direction is to be issued to release them on bail. When an absconding accused surrenders before the court and files an application for bail, Magistrate is expected to pass orders in the application without delay. When the final report is submitted and an application for bail is moved for an offence under Section 420 of Indian Penal Code, in the ordinary course accused is to be granted bail, unless court finds that their presence cannot be procured for trial if released. In such circumstances, I find no reason to believe that Magistrate will not act in accordance with law and therefore, no direction is necessary. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRMC 1299/09 5