IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3356 of 2009()
1. AYILAM UNNIKRISHNAN, NISHA NIVAS,
... Petitioner
2. U.S.RAJESH, NISHA NIVAS,
Vs
1. B.S.GIRIJA KUMARI, SREEVILAS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/10/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 3356 OF 2009
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Dated 19th October 2009
O R D E R
Petitioners are the accused 2 and 3 in
C.C.715/2005 on the file of Judicial First Class
Magistrate-III, Thiruvananthapuram taken cognizance
for the offence under Sections 379, 465, 468, 471 and
120 B read with Section 34 of Indian Penal Code on
Annexure-I complaint filed by first respondent. This
petition is filed under Section 482 of Code of
Criminal Procedure to quash the complaint contending
that first respondent was the accused in C.C.251/2002
filed by second petitioner herein and C.C.123/2003
complaint filed by first petitioner, alleging that
first respondent committed offence under Section 138
of Negotiable Instruments Act. It is contended that
evidenced by Annexures-II and III judgments in those
cases first respondent had raised the same contentions
as raised in Annexure-I complaint and the learned
Magistrate did not accept the contentions and in the
light of Annexures-II and III judgments, continuation
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2
of the proceedings is only an abuse of process of
court.
2. Learned counsel appearing for the
petitioners and learned Public Prosecutor were
heard.
3. Argument of the learned counsel is
that even though appeals are pending against
Annexures-II and III judgments, only the sentence
was suspended and so long as conviction in
Annexures-II and III are not varied or modified,
petitioners cannot be convicted, even if they are
tried and therefore, the proceedings is to be
quashed.
4. When admittedly appeals are pending
as against Annexures-II and III judgments, it cannot
be said that criminal case pending before the
learned Magistrate is to be quashed, based on the
findings in the said judgments. If ultimately
appeals are to be allowed and the findings of the
learned Magistrate is to be reversed and meanwhile,
proceedings before the learned Magistrate is to be
quashed, it will not be in the interest of justice
at all. Learned counsel then submitted that as
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second petitioner was not in India he could not
appear and seek regular bail, learned Magistrate has
issued non bailable warrant and direction may be
issued to consider the application for bail on the
date of their surrender.
Petition is disposed permitting the
petitioners to raise all the contentions raised
herein at the time of trial. If second petitioner
surrenders and files an application for bail,
Magistrate to pass appropriate order in accordance
with law without delay. I find no reason to believe
that Magistrate is unaware of the provisions of law
or the decision of this court or the Apex court or
that the Magistrate will not act in accordance with
law. Hence no direction is warranted.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.