IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 CRL.MC.NO. 1873 OF 2011() --------------------------------------- CC.1867/2011 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... PETITIONER(S): ACCUSED ------------------------------------- AJAY SANKAR,S/O.SURENDRANATH, PANCHAJANYAM HOUSE,NEAR PUTHENKAVU DEVI TEMPLE, PO PUTHENKAVU,CHENGANNUR,PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. O.K.RADHAKRISHNAN NIAR,UZHIYINKAVUNGAL HOUSE,KOTTANADU DESOM,MALLAPPILLY , ALAPPUZHA. 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE COMPLAINT. ANNEXURE AII A TRUE COPY OF FIR REGISTERED BY THE HARBOR POLICE. ANNEXURE AIII A TRUE COPY OF THE STATEMENT GIVEN BY THE FIRST RESPONDENT BEFORE THE HARBOR POLICE. ANNEXURE AIV A TRUE COPY OF THE BANK MANAGER'S STATEMENT. ANNEXURE AV A TRUE COPY OF THE FINAL REPORT FILED IN C.C. NO.1867 OF 2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1873 of 2011 ==================================== Dated this the 23rd day of June, 2011 O R D E R Petitioner challenges the final report and cognizance taken by the learned Judicial First Class Magistrate-I, Kochi in C.C. No.1867 of 2011 for offences punishable under Section 420 of the Indian Penal Code. According to the first respondent, petitioner had borrowed Rs.10,00,000/- from him on the strength of a document executed in his favour and while so, on 21.01.2009 petitioner issued a cheque for Rs.7,00,000/- offering to give a fresh promissory note for the balance amount. At that time believing that representation made by petitioner that cheuqe will be honoured on presentation and a fresh promissory note will be executed, first respondent returned the document petitioner had given to him on 21.01.2008. But later, it turned out that petitioner had issued the cheque on an account which had already been closed. First respondent alleged that but for the representation made that the cheque will be honoured and petitioner will issue a fresh promissory note, he would not have returned the document CRL.M.C. No.1873 of 2011 -: 2 :- petitioner had given him on 21.01.2008. In the circumstances it is alleged that offence of cheating is made out. Petitioner has challenged the final report and cognizance taken on various grounds. 2. At the time the matter came up for hearing learned counsel sought permission to withdraw the case without prejudice to the right of petitioner to take appropriate plea/defence before the learned Magistrate including a plea of lack of jurisdiction to take cognizance on account of want of territorial jurisdiction (as the learned counsel contends). I am inclined to grant permission. Resultantly, Criminal Miscellaneous Case is dismissed as withdrawn without prejudice to the right of petitioner to take appropriate plea/defence before the learned Magistrate including plea of lack of jurisdiction to take cognizance on account of want of territorial jurisdiction as the petitioner contends (if the plea has not already been recorded). THOMAS P. JOSEPH, JUDGE. vsv