IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.MC.No. 1268 of 2009() ------------------------- CC.856/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER/ACCUSED: ---------------------- T.V.G.MENON, S/O.LATE RAVI VARMA THAMPURAN, AGED 71, RESIDING AT TRAYEE, WARRIAM ROAD, ERNAKULAM, KOCHI - 16. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN RESPONDENT/ COMPLAINANT: -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. ADDITIONAL R2 IMPLEADED Dr. GOVINDAN NAIR SON OF KUNJAMBU NAIR MELOTH HOUSE, 'GOPIKA' THIRURANBADI, TRICHUR IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 10.06.09 IN CRL.M.A.3060 of 2009. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.M.C.No. 1268 of 2009 --------------------------------------- Dated this 31st day of July 2009 ORDER Heard counsel for petitioner and public prosecutor. 2. Petitioner before me is a senior citizen and accused of offence punishable under section 420 of the Indian Penal Code (for short, “the Code”). According to the defacto complainant, he entered into an agreement with petitioner for purchase of 1.16 acres of land belonging to the wife and daughter of petitioner for consideration at the rate of Rs.15000/- per cent. Petitioner received Rs.1,00,000/- by way of advance. He had agreed to settle the legal dispute over the property and execute sale deed in favour of defacto complainant. According to the defacto complainant, neither did petitioner resolve the dispute over the property nor return the sum of Rs.1,00,000/-. He filed a complaint in the court below which was forwarded to the police for investigation. Police after investigation filed a final report alleging that petitioner committed offence punishable under section 420 of the Code. Contention of petitioner is that the sum of Rs.1,00,000/- received by way of advance has already been returned to the defacto complainant. There is no material to show dishonest intention to cheat defacto complainant and hence the complaint as well as final report of investigation are liable to be quashed invoking the power of this court under section 420 of the Code. Learned counsel states that there was Crl.R.P.No.1268 of 2009 2 not even a written statement for sale but petitioner was honest enough to return the advance money to the defacto complainant. 2. Before deciding to frame charge learned magistrate has to satisfy himself whether there is sufficient ground to presume that petitioner has committed an offence triable under chapter XIX of the Code of Criminal Procedure (for short, “the Code”). If on such consideration learned magistrate is of the view that the charge is groundless, he has to discharge the petitioner. It is open to the petitioner. It is open to the petitioner to urge all the contentions raised in this petition before learned magistrate and convince the learned magistrate that the charge is groundless. The power under section 482 of the Cr.PC is to be used very sparingly when request to quash the final report is made. I am therefore not inclined to entertain this petition. The proper course for the petitioner is to urge all his contentions before learned magistrate. 3. Learned counsel submits that petitioner is now aged 71 years and is unable to attend the court regularly. This is not a case requiring any identification of petitioner and hence presence of petitioner in the trial court is required unless and until that court decided to frame charge against petitioner. That being the situation it is open to the petitioner to request learned magistrate to permit him to appear in that court through counsel. If any such request if made, Crl.R.P.No.1268 of 2009 3 learned magistrate shall consider that request considering the facts and circumstances of the case and pass appropriate orders. With the above direction, this petition is dismissed. THOMAS P JOSEPH, JUDGE Sbna/