IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 Crl.MC.No. 613 of 2010() ---------------------------------- C.C. NO.209/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEYYATTINKARA. .............. PETITIONER(S): IST ACCUSED ---------------------------------------------- VISWAMBHARAN, AGED 61 YEARS, S/O.BHASKARAN, PALATHADIVILAKATHU HOUSE, CHENGAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.DIVAKARAN RESPONDENT(S): COMPLAINANT ----------------------------------------------- 1. G.RAVI, S/O.GOPALAN, PEELIYANKONAM, RESHMA NIVAS, KULATHOOR VILLAGE, VENGODAMPU DESOM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.G.SUDHEER R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.613 of 2010 -------------------------- ORDER Petitioner, the first accused in C.C.No. 209/2005 on the file of Judicial First Class Magistrate's Court-II, Neyyattinkara, filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-A1 complaint contending that petitioner allegedly approached first respondent/complainant on 5.9.2002, when, in fact, petitioner was not in India on that date and therefore, learned Magistrate should not have taken cognizance of the offence. It is contended that police, after investigation, submitted Annexure-A3 refer report and the protest complaint is filed without any bona fides and learned Magistrate illegally took cognizance of the offence and therefore, the cognizance taken is to be quashed. CRMC 613/10 2 2. Learned counsel appearing for the first respondent pointed out that petitioner had earlier filed Crl.M.C.No.3687/2005 before this Court for quashing the cognizance taken and it was subsequently withdrawn without obtaining liberty to file a fresh petition and thereafter petitioner approached the learned Magistrate for an order of discharge and it was dismissed and the revision filed challenging that order was also dismissed. Petitioner is, therefore, not entitled to approach this Court again to quash the proceedings. 3. Learned counsel appearing for the petitioner, first respondent and learned Public Prosecutor were heard. 4. It is submitted by the petitioner himself that he had earlier approached this Court for the same relief under Section 482 of Code of Criminal Procedure and it was dismissed as withdrawn. There is no case for the petitioner that it was withdrawn with liberty to file a fresh petition. It is also CRMC 613/10 3 admitted that subsequent to the dismissal of the Crl.M.C., petitioner sought an order of discharge from the learned Magistrate under Section 245(1) of Code of Criminal Procedure and that petition was dismissed and the revision filed challenging that order was also dismissed. In such circumstances, petitioner is not entitled to approach this Court again for the same relief. Petition is dismissed. Learned Counsel then submitted that personal presence of the petitioner may be dispensed with at the time of trial. It is up to the petitioner to approach the learned Magistrate under Section 205 of Code of Criminal Procedure to dispense with his presence. If an application is filed, Magistrate to consider the application and pass appropriate order in accordance with law. 7th September, 2010 (M.Sasidharan Nambiar, Judge) tkv