A.P.Pradeep vs State Of Kerala on 3 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3347 of 2008()


1. A.P.PRADEEP, S/O.BALAN, PRABHA,
                      ...  Petitioner
2. A.P.PRAKASHAN, S/O.BALAN, PRABHA,

                        Vs



1. STATE OF KERALA, REPRESENTED BY PUBLIC
                       ...       Respondent

2. A.K.MUKUNDAN, S/O.KANNAN, APARNA,

                For Petitioner  :SRI.P.M.PAREETH

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :03/09/2008

 O R D E R
                          R. BASANT, J.
            -------------------------------------------------
                  Crl.M.C. No. 3347 of 2008
            -------------------------------------------------
         Dated this the 3rd day of September, 2008

                               ORDER

The petitioners face indictment as accused in a

prosecution initiated by the respondent/complainant, inter alia,

under Sec.420 IPC. The petitioners, along with the

complainant, were partners of a partnership firm. According

to the petitioners, the complainant had retired from the

partnership firm. They, along with another, had executed

release agreement as both of them were retiring from the

partnership. Annexure-A1 is said to be the release agreement

so executed by the retiring partners including the

respondent/complainant. It is the case of the petitioners that

suppressing Annexure-A1 agreement completely and raising

totally false and vexatious allegations against them, a private

complaint has been filed by the respondent/complainant before

Crl.M.C. No. 3347 of 2008 -: 2 :-

the learned Additional Chief Judicial Magistrate, Thalassery.

Earlier, the petition was filed before the police and the police,

after due investigation, had referred the said complaint.

Without proper application of mind, cognizance has been taken

of the offence allegedly committed by the petitioners. In these

circumstances, it is prayed that this petition may be allowed and

the prosecution initiated against the petitioners may be quashed.

2. To put it in a nutshell the contention is that in the light

of Annexure-A1 agreement the prosecution cannot lie. The

complainant can be contradicted with Annexure-A1 agreement

and if Annexure-A1 agreement is found to be genuine, the

complainant is guilty of fraudulent suppression of facts in the

complaint.

3. I am afraid that at this stage of Sec.482 Cr.P.C. this

contention cannot be accepted. I need only mention that I have

gone through Annexure-A1 and have specifically referred to the

signatories in the agreement. At the moment and with the

available inputs, a specific conclusion that Annexure-A1 can be

acted upon cannot, at any rate, be entered. Annexure-A1 cannot

be reckoned as material of “sterling quality” of which cognizance

can be taken at the stage of Sec.482 Cr.P.C. It is for the

petitioners to raise appropriate contentions before the learned

Crl.M.C. No. 3347 of 2008 -: 3 :-

Magistrate to claim discharge under Sec.245(2)/245(1) Cr.P.C.

or acquittal at later stages on the strength of Annexure-A1. I am,

in these circumstances, satisfied that the extraordinary inherent

jurisdiction under Sec.482 Cr.P.C. does not deserve to be

invoked.

4. The learned counsel for the petitioners submits that the

petitioners will be put to great hardship, inconvenience,

prejudice and loss if the learned Magistrate were to insist on

their personal presence for further proceeding in the matter.

Both petitioners are abroad, it is submitted. I can see no

possibility of any dispute regarding identity. In the facts and

circumstances of this case, the petitioners can certainly appear

through their counsel before the learned Magistrate and seek

exemption under Sec.205/317 Cr.P.C. Such petition must be

considered favourably by the learned Magistrate and

unnecessary insistence on personal appearance of the

petitioners should not be made by the learned Magistrate. The

learned Magistrate can consider the plea for discharge under

Sec.245(2) Cr.P.C. Until a decision is taken on the question of

framing charge under Sec.246 Cr.P.C., the petitioners, if they

apply through their counsel, can be permitted to appear through

their counsel and participate in the proceedings. Their personal

Crl.M.C. No. 3347 of 2008 -: 4 :-

presence need be insisted only if the learned Magistrate finds

that the charges are liable to be framed under Sec.246 Cr.P.C.

5. With the above observations, this Crl.M.C. is dismissed.

Sd/-

(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge