IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 Crl.MC.No. 4236 of 2008(D) -------------------------------------- CC.NO.41/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-VI, KOZHIKODE. .................... PETITIONER/ IST ACCUSED: ----------------------------------------- SISUPALAN, S/O.CHELLAPPAN NAIR, 'KARTHIKA', GOKULA STREET, KERALAPURAM VILLAGE, CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADV. MR.SANTHEEP ANKARATH. RESPONDENTS/ STATE & COMPLAINANT: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SI OF POLICE, PANNIYANKARA POLICE STATION, KOZHIKODE DISTRICT. 2. VASUDEVAN, S/O.POKKAN, PROPRIETOR, "VAS WOOD INDUSTRIES", EAST KALLAYI, KOZHIKODE. R1 BY PUBLIC PROSECUTOR MR. GIKKU JACOB, R2 BY ADVS. MR.T.R.RAVI, MR.P.S.MURALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ==================== Crl.M.C. No. 4236 of 2008-D ==================== Dated this the 12th day of June, 2009. O R D E R Petitioner is the first accused and second respondent, the complainant in C.C.No.41/2008 on the file of Judicial First Class Magistrate Court-VI, Kozhikode. Second respondent lodged Annexure A4 complaint, alleging that petitioner and second accused committed offence under Section 420 read with Section 34 of Indian Penal Code, which was taken cognizance by the Magistrate. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint contending that ingredients of the offence under Section 420 of Indian Penal Code is not made out and therefore the Magistrate should not have taken cognizance of the offence. 2. Learned Counsel appearing for petitioner and second respondent were heard. Crl.M.C.No.4236/2008-D -2- 3. The argument of the learned Counsel appearing for petitioner is that there is no allegation in the complaint that the accused had an intention to cheat when the cheque was issued originally and in its absence, no offence under Section 420 of Indian Penal Code is attracted. It cannot be disputed that to attract an offence under Section 420, ingredients of cheating as provided under Section 415 of Indian Penal Code is to be established. There should be allegation and evidence that the accused, with the dishonest intention to cheat, made second respondent to part with money or to do some act which he would not have otherwise done. 4. An offence under Section 420 of Indian Penal Code is to be tried as a warrant trial case. When that be the case, I do not find it necessary for this Court to quash the proceedings invoking the power under Section 482 of Code of Criminal Procedure, when petitioner has a remedy to seek an order of discharge under Section 239 of Code of Crl.M.C.No.4236/2008-D -3- Criminal Procedure. Petitioner is permitted to file an application for discharge under Section 239 of Code of Criminal Procedure in C.C.No.41/2008 and the Magistrate is directed to pass appropriate orders in accordance with law. Petitioner is permitted to appear through a Counsel before the Magistrate and file an application for exemption under Section 205(1) of Code of Criminal Procedure. If such an application is filed, Magistrate not to insist for the personal appearance of the petitioner for hearing the petition under Section 239. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr