IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.MC.No. 3855 of 2007() ------------------------- CC.751/2005 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER: ACCUSED NO.3 ------------------------ SHIBU KOSHY, S/O P.K.KOSHY, ANCHERIL VEEDU, DEVALOKAM, KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. PERUMAL PILLAI, S/O SABARIMALA PILLAI, CHALAKAL HOUSE, KARIKODE, THODUPUZHA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, NARAYANAPANICKAR, S/O RAMANPILLAI, VAILOPPILLY HOUSE, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3855 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of September, 2008 O R D E R The petitioner is the third accused in a prosecution for offences punishable, inter alia, under Sections 120B and 468 r/w. 34 I.P.C. Altogether there are three accused persons. Accused 2 and 3 are admittedly the Managing Partners of Garuda Confectioneries, a partnership firm. The third accused was admittedly authorised to sign cheques on behalf of Garuda Confectioneries. A cheque signed by the first accused was issued to the complainant. That cheque was dishonoured. The complainant prosecuted the Garuda Confectioneries and all its partners under Section 138 of the N.I. Act. Holding that the first accused herein is not duly authorised to sign the cheque on behalf of the firm, the said prosecution ended in an acquittal. 2. Thereafter the complainant filed a complaint before the C.J.M., Thodupuzha alleging that he was the victim of fraudulent deception by the three accused persons. The crux of the Crl.M.C.No. 3855 of 2007 2 allegations is that accused 2 and 3, who are partners, the third accused being authorised to sign the cheque on behalf of the firm, had conspired with the first accused, who induced the complainant to accept a cheque signed by him on behalf of the firm. The first accused has no legal authority to sign the cheque. It was accused 2 and 3, who had the requisite legal authority to sign the cheque. They had conspired together. The third accused had handed over the cheque to the first accused in pursuance of the conspiracy. The first accused induced the complainant fraudulently to believe the representation and receive the said cheque. It is in this context that allegations under Sections 120B and 468 I.P.C. are raised against the accused persons. 3. Cognizance has been taken by the learned Magistrate. The petitioner has not entered appearance so far. The co-accused have already entered appearance. The petitioner is employed abroad. He has, at this stage, come to this Court with a prayer that powers under Section 482 Cr.P.C. may be invoked to quash the proceedings against him. Crl.M.C.No. 3855 of 2007 3 4. I am not persuaded to agree that this is a fit case where such invocation of the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. is necessary or warranted. At the moment and with the available inputs it is not possible to jump to a conclusion that the allegations against the petitioner are not justified at all. The petitioner, it is alleged and not seriously disputed before me, is the person legally competent to sign cheques on behalf of the firm, though it is contended that the firm has now become defunct. The cheque, which must have been in the possession of the petitioner, is made use of by the first accused to fraudulently deceive the complainant. It is on the basis of this assertion that the allegation of conspiracy is made. 5. I shall carefully avoid any detailed discussion on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that at the moment and with the available inputs, it is impossible for this court to come to a conclusion that the allegations against the petitioner do not deserve to be probed into and tried. He must appear before the learned Magistrate and seek discharge/acquittal as the case may be. He can stake his claim for Crl.M.C.No. 3855 of 2007 4 discharge under Section 245(2) and/or 245(1) Cr.P.C. Thereafter, of course, the petitioner can seek acquittal raising all relevant contentions if he does not succeed in his claim for discharge. 6. The learned counsel for the petitioner submits that the petitioner is not available in India and the petitioner may be permitted to appear through pleader and stake his claim for discharge. It is for the petitioner to make proper application and I have no reason to assume that the learned Magistrate would not consider such application on merits. The claim for premature termination under Section 245(2)/ 245(1) Cr.P.C. by discharge, unless there are satisfactory reasons, can be considered without insisting on the personal presence of the indictee. 7. This Crl.M.C. is dismissed with the above observations. (R. BASANT) Judge tm