IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.MC.No. 713 of 2010() ------------------------ CC.219/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD PETITIONER(S): ACCUSED NOS.1 TO 3 ------------------------------------------- 1. C.SEERAPANI, AGED 53 YEARS, S/O.RAMA KURUP, MANAGER, THE SOUTH MALABAR GRAMIN BANK, KALLADIKODE BRANCH, PO,MANNARKKAD, (NOW WORKING AT POOKKOTTUMPADAM BRANCH, NILAMBUR(VIA), MALAPPURAM DIST) 2. N.BABU, AGED 5O YEARS,S/O.APPU, CLERK, THE SOUTH MALABAR GRAMIN BANK, KALLADIKODE BRANCH, PO,MANNARKKAD,(NOW WORKING AT MAIN BRANCH,T.B.ROAD, PALAKKAD ) 3. M.MINI MENON, AGED 42 YEARS, W/O.SATHEESH KUMAR,CLERK, THE SOUTH MALABAR GRAMIN BANK, KALLADIKODE BRANCH, PO,MANNARKKAD, KALLADIKODE BRANCH,(NOW WORKING AT MANNARKKAD BRANCH, EAST FORT, TRIVANDRUM DISTRICT) BY ADV. SRI.T.R.RAVI SRI.JAWAHAR JOSE RESPONDENT(S): COMPLAINANT & STATE ---------------------------------------------- 1. P.K.KRISHNANKUTTY, AGED 70 YEARS, S/O.KOCHUKUNHAN, MAZHUVANCHERRY HOUSE, KALLADIKODE AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD DIST. 2. THE STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/08/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 713 OF 2010 =========================== Dated this the 30th day of August,2010 ORDER Petitioners are the accused in C.C.219/2009 on the file of Judicial First Class Magistrate's Court, Mannarkkad taken cognizance on Annexure A complaint filed by the first respondent, after an investigation the police filed a refer report. Learned Magistrate has taken cognizance without a speaking order. The order only shows issue summons to the accused. This petition is filed under section 482 of the Code of Criminal Procedure to quash the order contending that when a protest complaint was filed, learned Magistrate is bound to consider the refer report and the materials produced along with the refer report and as it was not done, the order is to be quashed. Learned counsel also argued that Crl.M.C.713/2010 2 Annexure-E letter of the Chairman of the concerned bank establishes that an enquiry was conducted on the allegation of the complainant that Rs.67,453/- was deposited on 22.1.2005 and Rs.25,000/- on 25.11.2006, allegedly misappropriated and it was found that there was no such deposit and in such circumstances learned Magistrate should not have taken cognizance of the offence. 2. As the order does not indicate whether the refer report was taken note of by the learned Magistrate, as per order dated 10.8.2010 learned Magistrate was directed to submit a report whether he had taken into consideration the refer report submitted by the police before taking cognizance on the protest complaint. The report submitted by the learned Magistrate shows that on 29.9.2007 the refer report was submitted and was accepted without issuing notice to the de facto complainant which was evidently in proper. The de facto complainant thereafter filed the complaint and learned Magistrate conducted an inquiry under Crl.M.C.713/2010 3 section 202 of Code of Criminal Procedure and finding that there is a prima facie case, cognizance was taken. The report also shows that learned Magistrate has taken into consideration the refer report as well as the materials submitted along with it. In the light of the report of the learned Magistrate, petitioner is not entitled to get the cognizance taken quashed based on the decision of this Court in Parameswaran Nair v. Surendran (2009(1) KLT 794). 3. Then the only question is whether the cognizance taken is vitiated for want of materials. Learned counsel submitted that in view of Annexure E letter sent by the Chairman of the Bank, after conducting an inquiry, it should have been found that the case of the complainant is false. The report submitted by the learned Magistrate shows that after appreciating the evidence he found the evidence of the complainant prima facie trustworthy and reliable. This court cannot reappreciate the materials in a petition filed under section 482 of Crl.M.C.713/2010 4 the Code of Criminal Procedure and substitute that findings. Petitioners are at liberty to cross examine the complainant and the witness and seek an order of discharge under section 245(1) of the Code of Criminal Procedure. If the grievance of the petitioners is that they cannot be physically present on each of the posting dates, so long as the identity of the petitioners is not disputed, I find no reason to insist for the personal presence of the petitioners while recording the evidence of the complainant and his witness as provided under section 244 of Code of Criminal Procedure. If a petition is filed under section 205 of the Code of Criminal Procedure to dispense with their presence at the time of recording the evidence, learned Magistrate to consider th same liberally and not to insist for their presence. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.713/2010 5 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006