IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.MC.No. 2626 of 2009 ---------------------------------- [CC.NO.205/2005 OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR] .................... PETITIONER/ ACCUSED 2: -------------------------------------- DR.RAMACHANDRAN, AGED 51 YEARS, S/O.CHOYI, PURAKKATT HOUSE, NEAR THREE STAR SAW MILL, PAVARATTY, CHAVAKKAD TALUK, THRISSUR. BY ADVS. MR.P.RADHAKRISHNAN, MR.MADHU RADHAKRISHNAN. RESPONDENTS: ------------------------ 1. CIRCLE INSPECTOR OF POLICE, EAST POLICE STATION, THRISSUR. 2. SUB INSPECTOR OF POLICE, EAST POLICE STATION, THRISSUR 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. R1 TO R3 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2626 OF 2009 ------------------------------------------ Dated 17th September 2009 O R D E R Petitioner is the second accused in C.C.205/2005 on the file of Chief Judicial Magistrate, Thrissur. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 final report based on which cognizance was taken for the offence under Section 420 read with Section 34 of Indian Penal Code. Case of the petitioner is that he has not committed any offence and in fact it is based on his statement the crime was registered and the first accused was arrested and petitioner had only business transaction with first accused, a Tamilian, settled in South Africa and only later, petitioner came to know that first accused had given the address of the clinic of the petitioner for job advertisement and immediately petitioner contacted the first accused who came to the clinic and collected bio-data of all the applicants and he was unaware of the intention of the first accused and there is no common intention with first accused and therefore, the case as against petitioner is to be quashed. CRMC 2626/09 2 2. Learned counsel appearing for the petitioner submitted that learned Sessions Judge had occasion to peruse the case diary, while considering the application filed under Section 438 of Code of Criminal Procedure and in Annexure-A3 order it is stated that there is no material to connect the petitioner with first accused and in such circumstances, the case as against petitioner is to be quashed. 3. Learned Public Prosecutor submitted that there are materials to connect the petitioner with the offence and common intention is clear from the fact that first accused has made advertisement utilising the address of the petitioner and petitioner admitted that the address of the petitioner was used by to first accused. The question whether evidence is sufficient to convict the petitioner can only be decided at the time of trial and it is not a ground for quashing the proceedings. 4. I find force in the submission of learned Public Prosecutor. Question whether the evidence to be let in against the petitioner is sufficient to enter a conviction cannot be decided in this petition and on appreciation of evidence the case cannot be quashed. CRMC 2626/09 3 Petitioner is entitled to raise all the contentions before the learned Magistrate at the time of trial. 5. Learned counsel appearing for petitioner then submitted that appearance of the petitioner may be dispensed with and as first accused is absconding, petitioner may be permitted to seek an order of discharge from the learned Magistrate. If the first accused is absconding, learned Magistrate is competent to split-up the case as against him and proceed the case as against the petitioner. Petitioner is entitled to file a petition under Section 239 of Code of Criminal Procedure for discharge raising all the contentions raised herein. Petitioner is also entitled to file an application to dispense with his personal presence for the purpose of filing an application under Section 239 of Code of Criminal Procedure. Considering the nature of the offence, I do not find it necessary for the Magistrate to insist for the presence of the petitioner on all posting dates. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.