IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 409 of 2010()
1. JAYACHANDRAN, AGED 33 YEARS,
... Petitioner
2. THANKAMANI, AGED 66 YEARS,
3. KOUSALYA, AGED 62 YEARS,
Vs
1. STATE OF KERALA,REPRESENTED BY PUBLIC
... Respondent
2. KUMARAN, S/O.SANKARAN, MANAKKALATH HOUSE
For Petitioner :SRI.P.K.SAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/02/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.409 OF 2010
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Dated 17th February 2010
O R D E R
Petitioners are the accused in
C.C.562/2009 on the file of Judicial First
Class Magistrate’ court, Kunnamkulam, taken
cognizance for the offences under Sections
463, 464, 465, 468, 471 and 120B read with
Section 34 of Indian Penal Code on
Annexure-A6 final report. Petition is filed
under Section 482 of Code of Criminal
Procedure to quash Annexure-A6 final report
and the cognizance taken and to stay the
trial till a decision is rendered in
O.S.701/2008 on the file of Sub court,
Thrissur and also to grant permanent
exemption to petitioners 2 and 3, who are
aged ladies. Case of the petitioners is
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that O.S.701/2008 is pending before Sub
court, Thrissur where the genuineness of
the very same document is being tried and
till a decision is taken in the suit,
learned Magistrate shall not try the case.
It is also contended that when the original
document which is allegedly forged is not
produced before the court, learned
Magistrate should not have taken cognizance
of the offences and in any case,
petitioners 2 and 3 are to be exempted from
personal appearance.
2. Learned counsel appearing for
the petitioners and learned Public
Prosecutor were heard.
3. Though learned counsel
appearing for the petitioners argued that
as the very same question is being agitated
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before the civil court between the parties
and the question whether the disputed
documents were forged or not is to be
decided by the civil court, I cannot agree
with the submission of the learned counsel
that the finding to be rendered in
O.S.701/2008 is binding on the criminal
court. Criminal court has to decide the
question whether there was forgery based on
the evidence to be let in before the said
court. Therefore, there cannot be a
direction to keep the case in abeyance till
a decision in O.S.701/2008 is taken. Though
learned counsel vehemently argued that for
the failure to produce original documents
which is allegedly forged, the case is to
be quashed ,I cannot agree with the said
submission also. Petitioners are entitled
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to raise all the contentions before the
learned Magistrate and seek an order of
discharge under Section 239 of Code of
Criminal Procedure. Petitioners 2 and 3
are at liberty to file an application
under Section 205 of Code of Criminal
Procedure for permanent exemption. If such
an application is filed, it is for the
learned Magistrate to consider and pass
appropriate order in accordance with law.
So long as the identity of the petitioners
is not disputed, if proper application is
filed as provided under Section 205, I
find no reason why the exemption shall
not be allowed.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
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uj.