IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.MC.No. 3500 of 2010(B) -------------------------------------- [C.C. NO. 743/2008 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS , MALAPPURAM] .......................... PETITIONER IN CRL.M.C /ACCUSED NO.1: ------------------------------------------------------------- JAYAPRAKASAN, S/O. SEKHARAN, KRISHNA RAJANA, THEKKEDATHU PARAMBU, THIRUTHIYAD, KOZHIKODE. BY ADVS. SRI.R.SURAJ KUMAR, SRI. N. AJITH. RESPONDENTS IN CRL.M.C/ STATE AND COMPLAINANT: ---------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VIJESH.S.PERUVEMBA, S/O P.G.SITHARAMAN, P.G.S.MOTORS, KOYAS TOWER, MIDDLE HILLS, UPHILL, MALAPPURAM. R1 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3500 OF 2010 =========================== Dated this the 23rd day of September,2010 ORDER Petitioner the accused in C.C.743/2008 on the file of Judicial First Class Magistrate, Malappuram, taken cognizance for the offences under sections 406, 420 read with section 34 of Indian Penal Code,on Annexure C final report submitted by the Sub Inspector of Police, Malappuram in Crime 172/2008 filed this petition under section 482 of Code of Criminal Procedure to quash the cognizance taken as well as Annexure A complaint which was sent for investigation by Judicial First Class Magistrate, Malappuram under section 156(3) of Code of Criminal Procedure and Annexure B, F.I.R registered based on the said orders of the learned Magistrate. 2. Learned counsel appearing for the Crl.M.C.3500/2010 2 petitioner and learned Public Prosecutor were heard. 3. The argument of learned counsel appearing for the petitioner is that the case alleged in Annexure A complaint and reiterated in Annexure C final report is entirely different from the case set up by the second respondent, de facto complainant in Annexure E reply sent to the notice of the petitioner and in the light of the inconsistency of the case it is absolutely clear that the allegations raised in Annexure A complaint and the findings in Annexure C final report are unsustainable and hence the prosecution of the petitioner is only an abuse of process of the court. 4. On hearing the learned counsel appearing for the petitioner, I find no reason to quash the cognizance taken on Annexure C final report. Petitioner is at liberty to raise all the contentions raised herein before the learned Magistrate and seek an order of discharge under Crl.M.C.3500/2010 3 section 239 of Code of Criminal Procedure. Petition is dismissed with liberty to the petitioner to seek an order of discharge under section 239 of Code of Criminal Procedure. If petitioner files an application under section 205 of Code of Criminal Procedure, to dispense with his presence for the purpose of claiming dicharge under section 239 of Code of Criminal Procedure, learned Magistrate to consider not to insist for the personal appearance of the petitioner. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006