IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.MC.No. 600 of 2008() ---------------------------------- CC.661/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... PETITIONERS/ACCUSED 1 TO 6: --------------------------------------------- 1. HYDROSE, AGED 47 YEARS, S/O.SYED MUHAMMED, KUMMATTU PUTHANPURAYIL HOUSE, KAITHAKKADU KARA, KAITHAKKADU VILLAGE. 2. SERINA, AGED 20 YEARS, W/O.ABDUL REHMAN, VATTAKKATTU HOUSE, EDACHIRA KARA, KAKKANAD VILLAGE. 3. ASEEZ, AGED 21 YEARS, S/O.BEERANKUNJU, KUMMATTU PUTHANPURAYIL HOUSE, KAITHAKKADU KARA, KAITHAKKADU VILLAGE. 4. ANAS, AGED 23 YEARS, S/O.BEERANKUNJU, KUMMATTU PUTHANPURAYIL HOUSE, KAITHAKKADU KARA, KAITHAKKADU VILLAGE. 5. SHAJITHA, AGED 27 YEARS, W/O.SHAJI, VELIYATHU HOUSE, KANJIKUZHI KARA, KANJIKUZHI VILLAGE. 6. SHAJI, AGED 28 YEARS, S/O.HAMEED, VELIYATHU HOUSE, KANJIKUZHI KARA, KANJIKUZHI VILLAGE. BY ADV. MR.PEEYUS A.KOTTAM RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ADIMALY POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682 011. 2. CIRCLE INSPECTOR OF POLICE, ADIMALY POLICE STATION. Crl.MC.No. 600 of 2008 3. DAVID P.M. @ RAJAN, AGED 43 YEARS, S/O.MATHAI, POTTAKKAL HOUSE, 14TH MILE KARA, MANNAMKANDAM, VALARA P.O., DEVIKULAM. 4. SUB INSPECTOR OF POLICE, ADIMALY POLICE STATION, ADIMALY. R1, R2 & R4 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R3 BY ADV. SMT.C.S.SHEEJA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 600 of 2008 ORDER ON CRL.MA. NO.814/2008 IN CRL.MC. NO.600/2008 DISMISSED 17/11/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.600 of 2008 -------------------------- ORDER Petitioners are the accused in C.C.No.661/2007 on the file of Judicial First Class Magistrate's Court, Adimali, taken cognizance for the offences under Sections 406, 420, 467, 468 and 477A read with Section 34 of Indian Penal Code on Annexure-A8 final report submitted by Circle Inspector of Police, Adimali. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that it is only an abuse of process of the court and the complaint, sent for investigation under Section 156(3) of Code of Criminal Procedure, was filed only as a counter blast to the complaint filed by first petitioner against third respondent for an offence under Section 138 of Negotiable Instruments Act, when the cheque issued, as provided under Annexure-A3 agreement entered into between the parties, was dishonoured and in spite of notice, the amount was not paid. CRMC 600/08 2 2. Learned counsel appearing for the petitioners, third respondent and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners vehemently argued that the case was registered on Annexure-A1 complaint filed by third respondent before Judicial First Class Magistrate's Court, Adimali and sent for investigation under Section 156(3) of Code of Criminal Procedure and after investigation, Annexure-A6 refer report was filed and due to intervention of political leaders, the case was further investigated and Annexure-A8 final report was filed and when ingredients of the offences are not made out, continuation of the proceedings is only an abuse of process of the court and it is to be quashed. 4. Learned counsel appearing for the third respondent pointed out that Annexure-A8 final report discloses ingredients of the offences and in such circumstances, the case cannot be quashed. 5. On hearing the learned counsel appearing for the petitioners and third respondent, I do not find that this Court has to exercise the extraordinary CRMC 600/08 3 powers under Section 482 of Code of Criminal Procedure to quash Annexure-A8 final report as sought for, when petitioners can very well seek an order of discharge from the learned Magistrate under Section 239 of Code of Criminal Procedure. Learned counsel appearing for the third respondent pointed out that the accused did not appear and charge is yet to be framed by the court. In such circumstances, it is clear that question whether, on the materials, charge is to be framed as against the accused or they are to be discharged is to be considered by the Magistrate. Petition is disposed granting liberty to the petitioners to seek an order of discharge under Section 239 of Code of Criminal Procedure, raising all the contentions raised herein. They are at liberty to file a petition under Section 205 of Code of Criminal Procedure to seek their exemption for the purpose of filing a petition under Section 239 of Code of Criminal Procedure as well as for its hearing. 17th November, 2009 (M.Sasidharan Nambiar, Judge) tkv