IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.M.C.No. 1571 of 2006 ---------------------------------------- C.C.134/2006 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER / ACUSED NO.1. ----------------------------------------------- K.C.MATHEW, S/O.CHACKO, AGED 45 YEARS, JOSE MEDICALS, NULLIPPADY, KASARAGOD VILLAGE, KASARGOD POST AND TALUK. BY ADV. SMT.ROHINI V.MENON SMT.C.G.PREETHA RESPONDENTS / COMPLAINANT AND STATE. ------------------------------------------------------------------------ 1. M.MUHAMMADALI, 54 YEARS, S/O.MAHIN HAJI, NISHAD, GUDDE TEMPLE ROAD, ADUKKATHBAYAL VILLAGE, KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.SASINDRAN FOR R1 SRI.M.V.BIPIN FOR R1 PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON 17/09/2009 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1571 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September 2009 ORDER Petitioner is being prosecuted for the offences punishable under Sections 406 and 420 IPC at the instance of respondent No.1 herein, in C.C.No.134/06 on the file of the Chief Judicial Magistrate's Court, Kasaragod. 2. The gravamen of the charge against the petitioner/accused appears to be that he had availed of a loan of Rs.25,000/- from Kasaragod Service Co-operative Bank on the strength of the surety furnished by respondent No.1/complainant and his son. Petitioner committed default and the bank recovered the loan amount from respondent No.1 and his son. 3. Thereafter respondent No.1 filed a private complaint before the Chief Judicial Magistrate's Court, Kasaragod which was referred to the police for investigation under Section 156(3) of the Code of Criminal Procedure. The police referred the case as mistake of fact and thereafter petitioner filed a protest complaint. It is on the basis of the said complaint that the court below has issued process to the petitioner. Crl.M.C.No.1571 OF 2006 :: 2 :: 4. It is contended by the learned counsel that the learned Magistrate has issued process to him without any application of the judicial mind. There is considerable force in the above contention. 5. Admittedly, petitioner had sought the assistance of respondent No.1 and his son for availing of the loan from the Bank. It cannot be said that petitioner had committed any crime in doing so. It cannot also be said that by committing default in repayment of the loan petitioner had cheated respondent No.1 or committed criminal breach of trust. The learned Magistrate, before issuing process, ought to have kept in view the above aspects. 6. Having carefully perused the materials available on record, I am satisfied that the proceedings pending against the petitioner in C.C.No.134 of 2006 on the file of the Chief Judicial Magistrate's Court, Kasaragod are liable to be quashed. I do so. Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) jes