IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1268 of 2009()
1. T.V.G.MENON,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.A.BALAGOPALAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.M.C.No. 1268 of 2009
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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/