IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 Crl.MC.No. 3120 of 2009() ----------------------------------- CC.87/2009 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................. PETITIONERS/ACCUSED NOS.1 & 2: --------------------------------------------------- 1. LISSY.K.A. AGED 50 YEARS, W/O.P.K. UTHUP, RESIDING AT PAZHUKALAYIL HOUSE, 22/324 A.K.G.ROAD KADATHY PO, MUVATTUPUZHA TALUK, ERNAKULAM. 2. P.K. UTHUP, AGED 56 YEARS,S/O.KURIAKOSE RESIDING AT PAZHUKALAYIL HOUSE, 22/324 A.K.G.ROAD KADATHY PO, MUVATTUPUZHA TALUK, ERNAKULAM. BY ADV. MR.GEO PAUL MR.SANU MATHEW MR.C.R.PRAMOD MR.NOEL JOSEPH MR.M.B.SANDEEP MR.REJANISH.K.V. RESPONDENT/COMPLAINANT: ------------------------------------------- 1. KRISHNAN NAIR.K, AGED 46, S/O.KUNHAMBU NAIR .M, SREENIDHI, PERUMBALA PO, KALANAD, KASARAGOD TALUK KASARAGOD DISTRICT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3120 OF 2009 ------------------------------------------ Dated 24th November 2009 O R D E R Petitioners are accused in C.C.87/2009 on the file of Chief Judicial Magistrate, Kasaragod taken cognizance for the offence under Section 420 read with Section 34 of Indian Penal Code on Annexure-A3 final report filed by Additional Sub Inspector, Kasaragod police station, after investigation. First respondent has originally filed Annexure-A1 complaint which was sent for investigation and it is after investigation, Annexure-A3 final report was filed. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that cognizance taken is only an abuse of process of the court and therefore, it is to be quashed. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel submitted that first respondent has originally filed a complaint under Section 138 of Negotiable Instruments Act which was Crmc 3120/09 2 taken cognizance by the learned Magistrate as C.C.115/2008 and later as evidenced by Annexure-A5 order, complaint was withdrawn by first respondent and it is thereafter Annexure-A1 complaint was filed and in such circumstances, the attempt is only to harass the petitioners who are husband and wife and hence the case is to be quashed. 4. Learned counsel argued that ingredients of offence under Section 420 is not attracted as per the allegations in Annexure-A1 complaint and even if petitioners are to be tried, there is no likelihood of a conviction. 5. But petition is not filed to quash Annexure-I complaint. It is seen that petition is filed after completing the investigation and final report was filed before the Magistrate and it was taken cognizance. Therefore, based on Annexure-A1 complaint alone, the case cannot be quashed. To find out whether ingredients of an offence under Section 420 is attracted, petitioners have to make available entire statements recorded by the investigating officer during investigation. Those statements were not produced. Therefore, with the materials made available in this Crmc 3120/09 3 petition, it is not possible to decide whether ingredients of an offence under Section 420 is made out or not in the petition. 6. Petitioners are definitely entitled to seek an order of discharge under Section 239 of Code of Criminal Procedure. They are at liberty to raise all the contentions raised herein. In such circumstances, petition is disposed granting liberty to the petitioners to raise all the contentions raised herein and seek an oder of discharge under Section 239 of Code of Criminal Procedure. Learned counsel submitted that presence of petitioners may be dispensed with for that purpose. It is upto the petitioners to approach the Magistrate to dispense with their presence for the purpose of filing a petition under Section 239 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE. uj.