IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Crl.MC.No. 750 of 2008C() ------------------------ CC.143/2007 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER/ACCUSED ---------------------------------- 1. SASIKALA, W/O.SASIKUMAR, AGED 42 MANAPPATT HOUSE, VADAKKUMMURI BHAGAM THODUPUZHA VILLAGE. 2. SASIKUMAR, S/O.RAJAPPAN NAIR, AGED 52 MANAPPATT HOUSE, VADAKKUMMURI BHAGAM THODUPUZHA VILLAGE. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE SMT.SARITHA DAVID CHUNKATH SRI.M.MANOJKUMAR (CHELAKKADAN) RESPONDENTS/STATE & COMPLAINANT ----------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. VIJAYAKUMAR, S/O.RAJAPPAN NAIR AGED 57, MANAPPATT HOUSE, VENGALLOOR KARA KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK. R1 BY PUBLIC PROSECUTOR SRI. S.U.NAZAR. R2 BY SRI.T.J.MICHAEL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No.750 of 2008. ================== Dated this the 17th day of August, 2009. O R D E R Petitioners are accused and second respondent the complainant in C.C.No.143/2007 on the file of Chief Judicial Magistrate, Thodupuzha. Annexure A private complaint was filed by the second respondent alleging that petitioners, the husband and wife, committed the offence under Section 409 read with section 34 of Indian Penal Code. The learned Magistrate took cognizance of the offence. The case is being tried following the procedure for a warrant trial, otherwise on a police report. Necessarily evidence of the complainant and his witnesses are to be recorded as provided under section 244 of Code of Criminal Procedure. At that stage, petitioner has the option to cross examine the witnesses or to keep silent without cross examination and reserve the right of cross examination to a latter stage under section 246 of Code of Criminal Crl.M.C. No.750 of 2008. 2 Procedure. After recording the evidence as provided under Section 244, as provided under sub Section 1 of Section 245, Magistrate has to hear the complainant and the accused and thereafter decide whether the evidence let in, if unrebutted warrant, conviction of the accused and if not accused is to be discharged, as provided under section 245 (i) of Code of Criminal Procedure. On the other hand if the Magistrate finds that it is not a case for discharge, charge is to be framed as provided under Section 246(1) of Code of Criminal Procedure. Petitioner is entitled to raise all the contentions raised herein before the learned Magistrate, at the time of hearing under section 245(1) of Code of Criminal Procedure. They are also at liberty to file a petition for discharge under section 245(1) and urge the points available to them, including the one raised herein. Learned Magistrate is bound to consider and decide whether petitioners are to be discharged or not, if petitioners are not discharged and the petition is dismissed, Crl.M.C. No.750 of 2008. 3 the order is revisable. In such circumstances, I do not find necessary to consider the various argument raised by the learned counsel appearing for the petitioner. As Annexure A complaint if accepted in toto, it cannot be said that ingredients of the offence is not there. Petition is dismissed with liberty to the petitioners to move a petition for discharge as provided under Section 245(1) of Code of Criminal Procedure. I do not find reason to believe that if petitioners appear and apply for bail, learned Magistrate will not grant bail in the nature of offences. M.SASIDHARAN NAMBIAR, JUDGE app/-