IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2978 of 2007()
1. P.J.JAMES, S/O.P.V.JOSE, PROPRIETOR,
... Petitioner
Vs
1. P.J.JOSEPH, PALAKKARAN HOUSE,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.SATHISAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/09/2007
O R D E R
R.BASANT, J
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Crl.M.C. No.2978 Of 2007
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Dated this the 26th day of September, 2007
ORDER
The petitioner faces indictment in a prosecution for offences
punishable, inter alia, under Sections 406 and 420 IPC. Cognizance
has been taken on the basis of the final report submitted by the Police
after due investigation. The petitioner had earlier come before this
Court with a grievance that his claim for discharge under Section 239
Cr.P.C. has not been considered by the learned Magistrate. That
Crl.M.C was disposed of by the order dated 13.12.07 with
observations/directions. Later the learned Magistrate considered the
plea of discharge under Section 239 Cr.P.C. The learned Magistrate
evidently came to the conclusion that the petitioner is not entitled for
discharge under Section 239 Cr.P.C and proceeded to frame charges.
A copy of which the same is produced as Annexure 10.
2. The learned counsel for the petitioner contends that this
prosecution is only a retaliation against the prosecution under Section
138 of Negotiable Instrument Act , initiated by the petitioner against
the de facto complainant . The contention that the petitioner had
taken away the blank signed cheque leaf cannot stand at all, as the
petitioner is the person entitled to keep possession of the premises
Crl.M.C.No.2978 of 2007 2
and the de facto complainant had no rights over the property. The
learned counsel for the petitioner contends that the assertion of the
de facto complainant that he was in exclusive possession of the
premises cannot stand in the light of the documents produced and the
undisputed fact that the petitioner is the registered lessee under the
G.C.D.A. In these circumstances it is prayed that powers under
Section 482 may be invoked to quash the proceedings against the
petitioner .
3. Charges have been framed under Section 240 Cr.P.C.
Ordinarily and normally I would expect the indictee if he is aggrieved
by the order framing charges to challenge the charge under Section
240 Cr.P.C by invoking the revisional jurisdiction. The petitioner has
no intention to do so. He has come to this Court with a prayer to
invoke powers under Section 482 Cr.P.C. I have heard the learned
counsel for the petitioner in detail. I have perused the records. To
accept the contention of the learned counsel for the petitioner,
disputed questions of fact will have to be resolved. The question will
have to be decided as to the person in whose exclusive possession the
premises was on date of the alleged offence. Not withstanding the
documents- registered lease deed, it is contended that not the
petitioner but the de facto complainant was in physical possession. I
Crl.M.C.No.2978 of 2007 3
am of the opinion that such complex disputed questions of facts cannot
be attempted to be resolved in proceedings under Section 482 Cr.P.C.
It is confirmed that the matter has been listed for trial tomorrow that
is 27.9.07. I am of opinion that the petitioner must take part in the
trial and raise all his contentions. I find no compelling reason to
invoke the powers under Section 482 Cr.P.C. to prematurely bring to
termination of proceedings initiated against the petitioner.
4. This Crl.M.C is, in these circumstances dismissed. Needless
to say that this dismissal is solely on the ground that the extra
ordinary inherent jurisdiction is found to be not appropriate to be
invoked. I have not chosen to express any opinion on the disputed
questions. The petitioner’s right to raise all his contentions before the
trial court shall remain unfettered.
(R.BASANT, JUDGE)
sj