IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3272 of 2009()
1. MUHAMMED IQUBAL
... Petitioner
Vs
1. O.R.KRISHNAKUMAR AND ANOTHER
... Respondent
For Petitioner :SRI.N.K.MOHANLAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/10/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No.3272 OF 2009
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Dated this the 12th day of October,2009
ORDER
Petitioner is the first accused in C.C.2671/2008
on the file of Judicial First Class Magistrate Court
II, Thrissur taken cognizance for the offence under
section 420 of Indian Penal Code, against the two
accused upon Annexure -A1 complaint. Petition is filed
under section 482 of Code of Criminal Procedure to
quash the proceedings wherein, steps were initiated
under section 82 and 83 of Code of Criminal Procedure
for the failure of the petitioner to appear.
2. Learned counsel appearing for the petitioner
and the learned Public Prosecutor were heard.
3. Learned counsel appearing for the petitioner
submitted that ingredients of an offence under section
420 of Indian Penal Code is not attracted, as is clear
from Annexure-A1 complaint and therefore learned
Magistrate was not justified in taking cognizance of
the offence as against the petitioner. It is argued
that cognizance was taken on the allegation that first
accused issued a post-dated cheque which was later
Crl.M.C.3272/2009 2
dishonoured and it was found that it was not issued in the
account maintained by the first accused but second accused
and even if that allegation is correct it will not attract
an offence as against the petitioner. Learned counsel also
submitted that due to the mistake in communication
between the petitioner and the counsel, and as he was not
aware of the posting date, he could not appear and it
resulted in initiating steps under section 82 and 83 of
Code of Criminal Procedure.
4. Annexure A1 complaint shows that the allegation is
that the two accused approached first respondent,
complainant and borrowed Rs.1,00,000/- for their business
purpose promising to repay the same within one week and
before the expiry of the period first accused came to his
shop and handed over a cheque issued in the account
maintained in Perumbavoor Urban Co-operative Bank and when
it was presented for encashment it was found that it was
not issued in the account maintained by the first accused
but by the second accused and signed by petitioner and
therefore both the accused committed the offence under
sections 406, 420, 468 read with section 34 of Indian Penal
Code. The main crux of the allegation is that as promised
later first accused approached first respondent and handed
over a cheque for repayment of the money borrowed and later
it was found out that the said cheque was signed by first
accused in the account maintained by the second accused and
Crl.M.C.3272/2009 3
both the accused thereby committed the offence. There is
no specific allegation that when the amount was borrowed
there was a dishonest intention to cheat. The argument of
the learned counsel is that in such circumstances as
cheque was issued from the account of the second accused
petitioner cannot be proceeded with.
5. Petitioner is entitled to raise the contention
before the learned Magistrate and seek an order of
discharge under section 245 of Code of Criminal Procedure.
Petitioner is also entitled to file an application
explaining the reason why he did not appear when the case
was posted for appearance and to recall the warrant issued.
I find no reason to believe that Magistrate will not
recall the warrant or will not release him on bail, if a
petition is filed for bail. When an accused surrenders and
files an application for bail, Magistrate is expected to
pass orders in the application without delay. In such
circumstance, I find that no direction is warranted.
Petition is disposed granting liberty to the petitioner
to approach the learned Magistrate to recall the warrant
and also to release him on bail and to file a petition
under section 245 of Code of Criminal Procedure, for
discharge raising all the contentions raised herein.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006