IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 559 of 2006()
1. C.K.PEETHAMBARAN, S/O.KUNJU,
... Petitioner
Vs
1. THE JUDICIAL FIRST CLASS MAGISTRATE,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :06/06/2008
O R D E R
M.C.HARI RANI J.
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CRL.M.C.No. 559 OF 2006
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DATED THIS THE 6th DAY OF JUNE, 2008
O R D E R
The petitioner herein was the complainant in C.C.No.295/02 on
the file of the Judicial First Class Magistrate’s Court, Admilay filed
under Section 138 of the Negotiable Instruments Act and Section 420
of the Indian Penal Code. At the time of trial of the proceedings before
the Magistrate’s Court, the petitioner herein as the complainant before
the concerned court filed an affidavit in proof of his case along with
Exhibit P6 acknowledgment card evidencing receipt of notice issued at
the instance of the complainant to the accused in that case. In that
affidavit, it was averred by the complainant that the notice issued to
the accused was received by the accused in C.C.No.295/02 on
28.5.2002, to make it appear that the accused actually received the
notice, the original of Exhibit P4 on 28.5.2002. But the accused
actually put his signature in Exhibit P6 on 28.5.2002. On a perusal of
Exhibit P6, it was found by the complainant/Judicial First Class
Magistrate, Adimaly that the date was altered in Exhibit P6 to
28.5.2002 by adding ‘2’ to the left of ‘8’ which shows the date of
receipt of notice to make it believe that it was received by the accused
in C.C.No.295/02 on 28.5.2002. Accordingly, the learned Magistrate
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initiated action against the complainant in C.C.No.295/02 under sections 195
(1)(b) read with Section 340 Cr.P.C. Certified copy of which is produced as
Annexure A to this petition. The petitioner herein has filed this petition to
quash that order of the Judicial First Class Magistrate’s Court, Adimaly and
the proceedings in C.C.No.88/05 initiated against him and pending before
that court.
2. Heard the learned counsel appearing for the petitioner and the
learned Public Prosecutor. It is argued by the learned counsel appearing for
the petitioner that the learned Magistrate has not issued any notice to the
petitioner before taking action under the provisions of Section 340 of Cr.P.C.
wherein such a procedure is absolutely mandatory. It is also argued by the
learned counsel for the petitioner that the acknowledgment card, Exhibit P6
was received by his counsel and the alterations cannot be attributed to the
petitioner. Further, no opportunity has been given to the petitioner herein to
explain his stand before initiating the proceedings under Section 195(1)(b)
read with Section 340 Cr.P.C. The learned counsel has relied on the decision
reported in Kishori Lal and another v. State of Rajasthan and another
(1999 Crl.Law Journal 840). It is submitted by the learned Public
Prosecutor that all the mandatory requirements under Section 340 of the
Code of Criminal Procedure has been complied with by the learned
Magistrate before initiating proceedings against the petitioner herein and this
petition is liable to be dismissed.
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3. On a perusal of the records available before this Court and also
the complaint of the complainant before the Judicial First Class Magistrate’s
Court, Adimaly, Annexure A produced along with this petition, it is revealed
that a preliminary enquiry has been conducted by the learned Magistrate and
the list of documents has been appended along with the complaint which
includes Exhibits D1 and D2, that is, the relevant portion in the Branch Office
journal of the concerned Post Office. Undoubtedly, under Section 482 of
Cr.P.C., this Court has all such powers as are necessary to do the right and
to undo the wrong in the course of administration of justice. This inherent
jurisdiction has to be exercised sparingly, carefully and with caution. In
other words, if the initiation or continuance of any proceedings amounts to
abuse of the process of the court, such proceedings can be quashed under
Section 482 of the Cr.P.C. Whether any offence has been committed by the
accused therein is yet to be decided. This Court cannot give a prima facie
decision on that point. So, the allegations made against the complainant
cannot be the basis for quashing the proceedings as prayed for in this
petition. The complainant before the Judicial First Class Magistrate’s Court,
Adimaly has already taken cognizance of the offence and initiated
proceedings against the petitioner herein. It is held in the decision reported
in Pritish v. State of Maharashtra (AIR 2002 SC 236) that:
” If the Court finds it necessary to take a preliminary
inquiry to reach such a finding, it is always open to the
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Court to do so, though absence of any such preliminary
inquiry would not vitiate a finding reached by the Court
regarding its opinion. It should again be remembered
that the preliminary inquiry contemplated in the sub-
section is not for finding whether any particular person
is guilty or not. Far from that, the purpose of
preliminary inquiry, even if the court opts to conduct it,
is only to decide whether it is expedient in the interest
of justice to inquire into the offence which appears to
have been committed.”
In these circumstances, I find that there is no merit in the
allegations in this petition and this petition is liable to be dismissed.
In the result, the Crl.M.C. is dismissed.
M.C.HARI RANI, JUDGE.
dsn