IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 Crl.MC.No. 2608 of 2008() ------------------------- CC.558/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... PETITIONER/A2: ------------ T.P. SAINUDHIN, S/O. KUNHAHAMMAD T.P. HOUSE, MUZHAKKUNNU AMSOM DESOM POST VILAKKODE, IRITTY, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENTS/STATE & A1 & 3: ---------------------------------------------- 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, IRITTY POLICE STATION, KANNUR THROUTH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. KAYIKKAL YOUSAF, S/O,. MAMU NADUVANNUR AMSOM, MOOLADU DESOM KOYILANDI, KOZHIKODE. 2. SOUDHA YOUSEF, W/O. KAYIKKAL YOUSAF DO. DO. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2608 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July, 2008 O R D E R The petitioner is the second accused and he faces indictment, along with two other accused persons (A1 and A3), in a prosecution for offences punishable under Sections 420 and 406 r/w. 34 I.P.C. The petitioner prays that the powers under Section 482 Cr.P.C. may be invoked to quash the proceedings against the petitioner. 2. The facts of the case appear to be strange. The petitioner had initially filed a complaint against the first accused alleging commission of the offence punishable under Section 420 I.P.C. In that it was alleged that amounts were received from the petitioner herein by the first accused on the promise that VISAs will be made available for employment abroad. Amounts were received, but VISA was not made available. The petitioner realised that the first accused was fraudulently deceiving him. Crime No. 265 of 2006 of Iritty police station was registered. Crl.M.C.No. 2608 of 2008 2 2. Later, it would appear, that the third accused, who is the wife of the first accused, in furtherance of her common intention with the first accused allegedly deceived the petitioner. The modus adopted by the accused is that the first accused gave the petitioner a cheque for the amount which was due to him representing to the petitioner that it was on an account maintained by him. It was actually not an account maintained by the first accused but by the third accused. That cheque was dishonoured on presentation. The petitioner therefore filed a complaint against accused 1 and 3. The same was registered as Crime No. 157 of 2007. 3. According to the petitioner, the police with the only intention of vexing and harassing the petitioner, filed a consolidated final report alleging offences against accused 1 and 3 as well as the petitioner, who was arrayed as the second accused. According to him, the allegations are totally unjustified and the same is liable to be quashed invoking the jurisdiction under Section 482 Cr.P.C. 4. The learned counsel for the petitioner submits that summons has been issued to the petitioner in C.C. 558 of 2008. He is willing to Crl.M.C.No. 2608 of 2008 3 appear before the learned Magistrate. But the proceedings are liable to be quashed. Therefore he may be saved of the ordeal and trauma. 5. Premature termination of proceedings can be brought about in an indictment by resort to the ordinary provisions of the Cr.P.C. In every case where such premature termination of prosecution is a possibility, it is not necessary for the parties to rush to this Court with petition under Section 482 Cr.P.C. Ordinarily and normally premature termination can be claimed by an indictee by resorting to such ordinary provisions in the Code. In a case like the instant one, where warrant offences are alleged in the prosecution initiated on the basis of police report, the indictee can seek premature termination by discharge under Section 239 Cr.P.C. Not that this Court does not have the jurisdictional competence to direct premature termination in a prosecution by invocation of the jurisdiction under Section 482 Cr.P.C., but compelling and satisfactory reasons must be shown to exist to justify the resort to such extra ordinary provisions of the Code. 6. In the facts and circumstances of this case, I am not persuaded to agree that there are any compelling reasons which can or should Crl.M.C.No. 2608 of 2008 4 persuade this court to invoke the jurisdiction under Section 482 Cr.P.C. I am satisfied that the petitioner must be relegated to seek premature termination by discharge under Section 239 Cr.P.C. 7. The learned counsel for the petitioner submits that great prejudice, hardship and loss would result if the personal appearance of the petitioner were insisted to enable him to advance this plea for discharge. I am satisfied that appropriate direction can be issued under Section 482 Cr.P.C. to allay such apprehension of the petitioner. 4. This Crl.M.C. is accordingly dismissed, but it is observed that it shall be open to the petitioner to approach the Magistrate and seek premature termination by discharge under Section 239 Cr.P.C. When such plea is raised by the petitioner, the learned Magistrate must consider such plea in accordance with law and take appropriate decision on merits in the matter. 5. In the peculiar facts and circumstances of this case, it is directed that personal presence of the petitioner need not be insisted to consider such plea of discharge. The petitioner can be permitted to appear through pleader and raise his plea for discharge. Only if the Crl.M.C.No. 2608 of 2008 5 court finds that charges are liable to be framed, personal presence of the petitioner need to be insisted. Till then the petitioner shall be permitted to appear through counsel. The warrant of arrest issued shall not be executed till that time. (R. BASANT) Judge tm