IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 2264 of 2009(T) ------------------------- PETITIONER(S): --------------- SHAJI, S/O.KASIM KUNJU, AGED 42 YEARS, THAYYIL HOUSE, NEENDAKARA, PUTHENTHURA P.O. KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. THE DIRECATOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 2. RAJESH, THE DEPUTY SUPERINTENDENT OF POLICE, PERUNTHALMANNA, FORMERLY,THE CIRCLE INSPECTOR OF POLICE, KONNI, KOLLAM. 3. P.SREEKUMAR, THE SUB INSPECTOR OF POLICE KONNI POLICE STATION, KOLLAM. 4. DAVID JOHNY,JOBI VILLA, MANGARAM, KONNI VILLAGE, PATHANAMTHITTA. GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.2264 of 2009 ---------------------------------------- Dated this the 28th day of January 2009 J U D G M E N T The petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. That prosecution is in respect of a cheque for Rs.12,00,000/-. Cognizance has been taken. To claim the money due under the said cheque, a civil suit has also been filed by the petitioner. Those proceedings are pending as C.C.No.1/08 before the learned J.F.C.M Karunagappally and O.S.No.600/2007 before the Subordinate Judge, Ernakulam. According to the petitioner, while those proceedings were pending, only to vex and harass the petitioner, the 4th respondent (accused/defendant in the said proceedings) has lodged a complaint before the police and the police have obliged the 4th respondent by registering a crime. Ext.P1 is the F.I.R. Ext.P2 is the final report in that crime. According to the petitioner, no worthwhile investigation has been conducted in to that crime. The superior police officials were compelling the petitioner for a settlement of the prosecution under Section 138 of the Negotiable Instruments Act W.P.C.No.2264/09 2 and the civil suit; but the petitioner did not oblige. The final report has vexatiously been filed against him. If a proper investigation were conducted, the truth would have been revealed. The petitioner has a grievance that the investigating officer did not even advert to the fact that an earlier prosecution under Section 138 of the Negotiable Instruments Act and a civil suit were pending, they having been initiated long prior to the first information report in this case. The short request of the petitioner, in these circumstances, is that a further investigation may be directed to be conducted under Section 173(8) Cr.P.C. 2. The petitioner's grievance will certainly have to be looked into. But the petitioner shall have to explain why, instead of moving the learned Magistrate for getting a further investigation conducted under Section 173(8) Cr.P.C., he has rushed to this court with this writ petition. Existence of an equally efficacious alternative remedy must certainly prompt this court to discourage petitions like the instant one under Article 226 of the Constitution of India being filed before this court. The petitioner, it is trite after the decision in Shaji v. State of Kerala [2003(2) KLT 929], has the right to move the learned W.P.C.No.2264/09 3 Magistrate under Section 173(8) Cr.P.C. Without and before exhausting that equally efficacious alternative remedy under Section 173(8) Cr.P.C., I find no merit or justification in the prayer to invoke the jurisdiction under Article 226 of the Constitution of India. 3. In the result, this petition is dismissed. But it is made clear that the dismissal of this writ petition will not in any way fetter the rights of the petitioner to move the learned Magistrate under Section 173(8) Cr.P.C. If so moved, the learned Magistrate must consider the request of the petitioner on merits, in accordance with law and pass orders expeditiously. It is further made clear that if the grievance of the petitioner is not redressed by such order of the learned Magistrate, to be passed under Section 173(8) Cr.P.C, petitioner's option to come to this court again shall remain unfettered by the dismissal of this writ petition. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.2264/09 4 W.P.C.No.2264/09 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007