High Court Kerala High Court

Ayilam Unnikrishnan vs B.S.Girija Kumari on 19 October, 2009

Kerala High Court
Ayilam Unnikrishnan vs B.S.Girija Kumari on 19 October, 2009
       

  

  

 
 
  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.

              ------------------------------------------
               CRL.M.C.NO. 3356 OF 2009
              ------------------------------------------

              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

Crmc 3356/09
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

Crmc 3356/09
3

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.