IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 Crl.MC.No. 2142 of 2008() ------------------------- CC.890/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER/ACCUSED: ------------ BEJOY VARGHESE,AGED 57, S/O. LATE CAPT.P.K. VARGHESE PUTHENPURACKAL HOUSE, SHENOYS ROAD KALOOR, KOCHI -17. BY ADV. SRI.K.G.SARATHKUMAR SRI.S.RAJ KUMAR RESPONDENTS/COMPLAINANT: -------------------------------- 1. E.M. PURUSHOTHAMAN, AGED 55, S/O. MANI ANUGRAHA, VYTTILA DESOM, POONITHURA VILLAGE ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2142 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of June, 2008 O R D E R The petitioner faces allegations in a criminal case registered against him on the basis of a private complaint filed by the first respondent herein. The first respondent asserts that there was an agreement for sale of land executed by the petitioner in favour of the first respondent. There was allegedly breach of the obligations under that agreement. The first respondent went to the civil court with a suit for specific performance of that agreement. In that suit the petitioner herein entered appearance and filed a written statement, in which he advanced a plea that there was no intention to enter into any agreement for sale and blank signed papers are taken as security by the first respondent when he advanced certain amounts as loan. At that stage the first respondent turned around and started raising an allegation that the petitioner has committed the offence of cheating. Raising those allegations the first respondent has now filed a private Crl.M.C.No. 2142 of 2008 2 complaint, in which cognizance has been taken by the learned Magistrate. 2. According to the learned counsel for the petitioner it is malicious resort to the criminal adjudicatory process and the petitioner does not deserve to endure the trauma of such vexatious and malicious criminal proceedings against him. He therefore prays that powers under section 482 Cr.P.C. may be invoked to bring to premature termination such proceedings against the petitioner. 3. I shall carefully avoid any detailed discussion or expression of opinion on the contentions raised. But suffice it to say that I am satisfied that the petitioner's claim for premature termination of proceedings deserves to be considered seriously. In every case where premature termination of criminal proceedings is a possibility it is not necessary for this Court to invoke the powers under Section 482 Cr.P.C. Of course, this Court has jurisdiction undoubtedly. But normally and ordinarily the indictee ought to be directed to claim such premature termination of proceedings in accordance with the provisions of the Code. In a private complaint Section 245(2) at the threshold and Section 245(1) later are the provisions under which such Crl.M.C.No. 2142 of 2008 3 an indictee can claim premature termination of the proceedings. I am satisfied that the petitioner must relegated to seek such relief from the learned Magistrate. 4. The learned counsel for the petitioner submits that the petitioner will be put to unnecessary sufferings and hardship if he were compelled to appear before the learned Magistrate to consider such plea of discharge. In the facts and circumstances of this case, I am satisfied that while dismissing this petition, appropriate directions can be issued to secure the interests of the petitioner. 5. This Crl.M.C. Is dismissed. I direct the learned Magistrate to permit the petitioner to appear through counsel and raise his plea of discharge under Section 245(2) and/or 245(1) Cr.P.C. Until the learned Magistrate, after consideration of the contentions chooses to take a decision to frame charge under section 246 Cr.P.C, the personal presence of the petitioner shall not be insisted. Till such date the petitioner shall appear through a counsel. (R. BASANT) HO Judge Crl.M.C.No. 2142 of 2008 4 tm