IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3120 of 2009()
1. LISSY.K.A.
... Petitioner
2. P.K.UTHUP, AGED 56 YEARS,S/O.KURIAKOSE
Vs
1. KRISHNAN NAIR.K,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.GEO PAUL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3120 OF 2009
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Dated 24th November 2009
O R D E R
Petitioners are accused in C.C.87/2009 on
the file of Chief Judicial Magistrate, Kasaragod taken
cognizance for the offence under Section 420 read with
Section 34 of Indian Penal Code on Annexure-A3 final
report filed by Additional Sub Inspector, Kasaragod
police station, after investigation. First respondent
has originally filed Annexure-A1 complaint which was
sent for investigation and it is after investigation,
Annexure-A3 final report was filed. This petition is
filed under Section 482 of Code of Criminal Procedure
to quash the proceedings contending that cognizance
taken is only an abuse of process of the court and
therefore, it is to be quashed.
2. Learned counsel appearing for the
petitioners and learned Public Prosecutor were heard.
3. Learned counsel submitted that first
respondent has originally filed a complaint under
Section 138 of Negotiable Instruments Act which was
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2
taken cognizance by the learned Magistrate as
C.C.115/2008 and later as evidenced by Annexure-A5
order, complaint was withdrawn by first respondent and
it is thereafter Annexure-A1 complaint was filed and in
such circumstances, the attempt is only to harass the
petitioners who are husband and wife and hence the
case is to be quashed.
4. Learned counsel argued that ingredients
of offence under Section 420 is not attracted as per
the allegations in Annexure-A1 complaint and even if
petitioners are to be tried, there is no likelihood of
a conviction.
5. But petition is not filed to quash
Annexure-I complaint. It is seen that petition is
filed after completing the investigation and final
report was filed before the Magistrate and it was taken
cognizance. Therefore, based on Annexure-A1 complaint
alone, the case cannot be quashed. To find out whether
ingredients of an offence under Section 420 is
attracted, petitioners have to make available entire
statements recorded by the investigating officer during
investigation. Those statements were not produced.
Therefore, with the materials made available in this
Crmc 3120/09
3
petition, it is not possible to decide whether
ingredients of an offence under Section 420 is made out
or not in the petition.
6. Petitioners are definitely entitled to
seek an order of discharge under Section 239 of Code of
Criminal Procedure. They are at liberty to raise all
the contentions raised herein.
In such circumstances, petition is disposed
granting liberty to the petitioners to raise all the
contentions raised herein and seek an oder of discharge
under Section 239 of Code of Criminal Procedure.
Learned counsel submitted that presence of petitioners
may be dispensed with for that purpose. It is upto the
petitioners to approach the Magistrate to dispense with
their presence for the purpose of filing a petition
under Section 239 of Code of Criminal Procedure.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.