IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Crl.MC.No. 3513 of 2010(D) ------------------------- CC.83/2010 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER(S): ACCUSED ---------------------- SRIKANT KRISHNAN, AGED 54 YEARS, NACIKETHAM, POOJAPPURA, THIRUVANANTHAPURAM. BY. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE ADVS SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN RESPONDENT(S): COMPLAINANTS AND STATE ------------------------------------- 1. APP MIDDLE EAST LIC 417, A1 FAHID BUILDINGS, A1 QUASIS DEIRA, DUBAI, REP. BY THE MANAGING DIRECTOR, PREMALATHA, AGED 50 YEARS, RESIDING AT F2 KAMAL APARTMENTS, AMBALATHARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.PRADEESH CHACKO R2 BY PUBLIC PROSECUTOR SRI.NOUSHAD THOTTATHIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3513 of 2010(D) APPENDIX PETITIONERS ANNEXURES A: COPY OF THE PRIVATE COMPLAINT DATED 25.02.2010 PREFERRED BY THE 1ST RESPONDENT B: COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT HEREIN DATED 10.12.2006 ACKNOWLEDGING RECEIPT OF AMOUNTS FROM THE PETITIONER C: COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT HEREIN DATED 21.12.2006 ACKNOWLEDGING RECEIPT OF AMOUNTS FROM THE PETITIONER D: COPY OF THE RECEIPT ISSUED BY D.KRISHNANKUTTI PILLAI HUSBAND OF THE COMPLAINANT DATED 20.02.2007 TO THE PETITIONER E: COPY OF THE COVERING LETTER DATED 26.08.2008 GIVEN BY THE HUSBAND OF THE 1ST RESPONDENT HEREIN ENCLOSING DEMAND DRAFTS IN FAVOUR OF THE PETITIONER TOWARDS REPAYMENT OF A PART OF THE LIABILITY F: COPY OF THE CAVEAT O.P. PREFERRED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, IRINJALAKKUDA G: COPY OF THE RELEVANT PAGE OF THE PASSPORT PERTAINING TO THE 1ST RESPONDENT SHOWING HER ADDRESS H: COPY OF THE LETTER DATED 4.2.2010 ISSUED BY D.KRISHNANKUTTI PILLAI TO THE PETITIONER ACKNOWLEDGING THE TRANSACTION AND THE LIABILITY REMAINING ETC. RESPONDENTS ANNEXURES NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3513 OF 2010 (D) ------------------------------------------ Dated this the 21st day of December, 2011 O R D E R The accused in C.C. No:83/2010 of Judicial First Class Magistrate-III, Kottayam, is the petitioner. A private complaint was filed against him by the 1st respondent (hereafter referred to as respondent) before the Chief Judicial Magistrate Court, Kottayam, alleging offences under sections 406 and 420 IPC. It is contended that after recording the sworn statement of the complainant, the learned Magistrate took cognizance and issued process to the accused. That is the order under challenge in this petition filed under section 482 Cr.P.C. 2. It is seen that the complaint was actually of Smt.Premalatha. But the complainant is described in the complaint as 'APP Middle East LLC 417, Al Fahid Buildings, A1 Quais Deira, Dubai Represented by its Managing Director Crl. M.C. No: 3513 OF 2010 (D) -2- Smt. Premalatha'. In other words it is the company which is shown as the complainant. 3. On going through the allegations made in the complaint it would appear that the accused had made dishonest or fraudulent inducement to the complainant, Smt.Premalatha, and because of such fraudulent or dishonest representation she was made to part with huge amount to the accused. It is the person, Smt.Premalatha, who was allegedly cheated and not the Company/Firm. But this fact was omitted to be taken note of by the learned Magistrate while taking cognizance of the case. 4. There is specific allegation in the complaint that the accused made representation that he was living separately from his wife and that he intends to marry the complainant and so they were living together and by making use of that relationship, the accused induced her to part with money etc. Such an inducement cannot be made Crl. M.C. No: 3513 OF 2010 (D) -3- against a Company/firm. It is rightly submitted by the learned counsel for the petitioner. 5. The learned counsel for the petitioner would submit that in the passport and petition filed by the complainant before Sub Court and in other official records she is described as the wife of Mr. D. Krishnankutti Pillai and as such, the averment in the complaint that she expressed her desire to marry the accused cannot be accepted at all. This submission is countered by the learned counsel for the petitioner stating that in the official records she was described as the wife of Mr.D. Krishnankutti Pillai, because the marriage was not legally dissolved. That does not mean that she was not staying and continuing the relationship with Mr.D.Krishnankutti Pillai. What ever that be, it is not necessary to probe further into those aspects since there is another ground also on which cognizance taken by the Court below has to be set aside. Crl. M.C. No: 3513 OF 2010 (D) -4- 6. The accused is shown as the resident of Thiruvananthapuram district and the complaint was filed before the Chief Judicial Magistrate, Kottayam. In view of Section 202(1) Cr.P.C., which mandates that where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, the Magistrate shall postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or such authorized officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. It is not disputed that the learned Chief Judicial Magistrate has not followed the mandatory procedure prescribed under section 202(1) Cr.P.C. Hence on that ground cognizance taken against the accused has to be quashed. 7. The learned counsel for the complainant has submitted that most of the allegations made by the Crl. M.C. No: 3513 OF 2010 (D) -5- respondent in Annexure A complaint would, if at all, attract only civil liabilities but there is nothing to show that there was any dishonest intention while entering into the transaction mentioned in the complaint. But this submission is also stiffly resisted by the learned counsel for the petitioner who would submit that even though a civil action is maintainable, that will not preclude the aggrieved party from prosecuting the offender if there are sufficient grounds to proceed against him under the various sections of the penal Code. 8. As stated earlier, since the cognizance taken against the petitioner has to be quashed on the ground mentioned earlier, it is not necessary to dwell much on other aspects. 9. In the result, this petition is allowed. The cognizance taken against the petitioner in C.C. No:83/2010 of Judicial First Class Magistrate-III, Kottayam, and the Crl. M.C. No: 3513 OF 2010 (D) -6- proceedings thereunder, will stand quashed, but giving liberty to the complainant to file fresh complaint if there is no other legal impediment. The accused can raise all other contentions at the appropriate stage if any complaint is filed and cognizance is taken against him. N.K. BALAKRISHNAN, JUDGE jjj