IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.MC.No. 3365 of 2009() ------------------------- CMP.NO.11239 OF 2004 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR ST.NO.989/2008 OF CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD. CC.392/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR ...... PETITIONER(S): ACCUSED 1 & 2: ------------------------------------------------- 1. SOWBHAGYA ASSOCIATES, GUEST HOUSE ANNEX, ROBINSON ROAD, PALAKKAD, 678 001, REPRESENTED BY ITS MANAGING PARTNER, SHRI.C.K.MUKUNDAN. 2. C.K.MUKUNDAN, AGED YEARS, S/O. SANKARAN NAIR, PARTNER, SOWBHAGYA ASSOCIATES, GUEST HOUSE ANNEX, ROBINSON ROAD, PALAKKAD, 678 001, RESIDING AT DHURGA NIVAS, MUNDUR P.O., PALAKKAD DISTRICT. BY ADVS. MR.R.SUDHISH, SMT.M.MANJU. RESPONDENT(S): DEFACTO COMPLAINANT AND STATE: -------------------------------------------------------------------------------------- 1. SHRI. RAMANEE NARAYANAN, S/O.T.P.NARAYANAN, PROPRIETOR OF FAXCOM SYSTEM, 6TH FLOOR, COCHIN DEVASWOM BUILDING, ROUND NORTH, THRISSUR-600 001, RESIDING AT NELLAYI WESTERN HOUSE, P.O.NELLAYI, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3365 OF 2009 =========================== Dated this the 20th day of November,2009 ORDER Petitioners are the accused in C.C.392/2009 on the file of Judicial First Class Magistrate Court-I, Thrissur taken cognizance on Annexure A1 complaint after conducting an inquiry under section 202 of Code of Criminal Procedure. Annexure A6 the proceeding paper in C.M.P 11239/2004 shows that after recording the sworn statement of the complainant, Magistrate has ordered an investigation by the Dy.Superintendent of Police, Thrissur, who after investigation submitted a report. It is based on the sworn statement and the report, learned Magistrate took cognizance of the offence and later made it over to Judicial First Class Magistrate Court, Thrissur who issued summons to the petitioners on 21.2.2009 directing the petitioners to appear on 5.6.2009. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings contending that ingredients of an offence under section 417 of Indian Penal Code is not made out. Crl.M.C.3365/2009 2 2. Learned counsel appearing for the petitioners was heard. 3. Though learned counsel appearing for the petitioners argued that in the absence of a dishonest intention at the inception, as petitioners have been paying the price of the computers, subsequent default in payment will not make a criminal offence. But on the facts I do not think that it is for this court at this stage to consider the said question, when the learned Magistrate has taken cognizance after conducting a proper inquiry under section 202 of Code of Criminal Procedure. 4. After appearance, in answer to the summons issued under section 204 of Code of Criminal Procedure, the learned Magistrate has necessarily to follow the procedure as provided under sections 244 and 245 of Code of Criminal Procedure. As provided under section 244 of Code of Criminal Procedure, complainant and his witnesses are to be examined, in the presence of the petitioners. Petitioners are entitled to cross examine the witnesses. Thereafter Magistrate is bound to hear the petitioners and then decide whether there is any prima facie case to be proceeded against petitioners and then frame a charge if necessary, as provided under section 246(1). Otherwise petitioners are to be discharged under section 245 of Code Crl.M.C.3365/2009 3 of Criminal Procedure. Petitioners are entitled to raise all these contentions before the learned Magistrate raised herein at that stage. Petitioners are also at liberty to file a petition for discharge under section 245 of Code of Criminal Procedure. Learned counsel then submitted that presence of the petitioners may not be insisted for that purpose. It is upto the petitioners to file an application before the learned Magistrate under section 205 of Code of Criminal Procedure to dispense with their presence, for the purpose of hearing the petition under section 245 of Code of Criminal Procedure. If such a petition is filed, learned Magistrate not to insist for the presence of the petitioners, for the purpose of hearing the petitioners on the question of discharge under section 245 of Code of Criminal Procedure. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006