IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.MC.No. 1840 of 2009() ------------------------- CC.183/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT II, IRINJALAKUDA .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. ZAM ZAKKARIYA @ REJI, AGED 46 YEARS, VILANILAM VEEDU, PARIS DESOM, ADOOR, PATHANAMTHITTA (FORMERLY POST BOX NO.3646 DOHA, QATAR, ARABIAN GULF) 2. SAMKUTTY, AGED 88 YEARS, PENSIONER, VILANILAM VEEDU, PARIS DESOM, ADOOR, PATHANAMTHITTA. BY ADV.MR.S.SUBHASH CHAND RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. BABU, S/O.VISWAMBARAN, MULLEZHATHU, KOTTAPPURAM, METHALA, KODUNGALLUR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1840 OF 2009 ------------------------------------------ Dated 4th June 2009 O R D E R Petitioners are accused in C.C.183/2006 on the file of Judicial First Class Magistrate-II, Irinjalakuda. Based on the complaint filed by first respondent, learned Magistrate took cognizance of the offence under Section 420 read with Section 34 of Indian Penal Code. Annexure-1 charge was framed, after recording the evidence of the prosecution, as provided under Section 246(1) of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-1 charge and the proceedings taken on the ground that on the materials placed an offence under Section 420 of Indian Penal Code is not made out. Learned counsel appearing for petitioner pointed out that the allegation of the first respondent/complainant is only that he paid Rs.1,10,000/- on the promise of petitioners to furnish visa and later when the visa was not arranged on the request of first respondent, 2 a cheque was issued which was dishonoured when presented by first respondent and thereby petitioner committed an offence under Section 420 of Indian Penal Code and on these facts no offence will lie. 2. On hearing the learned counsel and going through the complaint based on which cognizance was taken, it is clear that the basic ingredients of an offence under Section 420 of Indian Penal Code is pleaded. In such circumstances, I find no reason to quash the proceedings at the threshold as sought for. Learned counsel then submitted that petitioners may be permitted to seek an order of discharge. When after recording the evidence for the prosecution and hearing the Prosecutor and the defence as provided under Section 245 Magistrate found that it is not a case where the evidence recorded if stand unrebutted would not warrant conviction and framed charge as provided under Section 246(1) of Code of Criminal Procedure, a petition for discharge will not stand thereafter. Petitioner is at liberty to raise all the contentions raised in this petition before the Magistrate including the contentions that in the 3 light of the charge framed petitioner cannot be convicted during the trial Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.