Kerala High Court
A.J. Augustine vs Annexure R2(A) : True Copy Of Order Sheet ... on 6 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935
Crl.MC.No. 2686 of 2008 (E)
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AGAINST THE ORDER/JUDGMENT IN CMP.1110/2008 IN CRIME
NO.318/2007 of J.M.F.C.,NEDUMKANDOM DATED 06-06-2008.
PETITIONER(S)/COMPLAINANT:
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A.J. AUGUSTINE,
ATTIPPATTIL HOUSE,
KALKOONTHAL VILLAGE,
NEDUKANDAM.
BY ADV. SRI.BINDU SREEKUMAR/
COMPLAINANT(S)/ACCUSED AND STATE:
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1. STATE OF KERALA, REP. BY THE
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2. K.C. RAJU, ADVOCATE,
NEDUMKANDAM BAR ASSOCIATION,
NEDUMKANDAM, IDUKKI.
R1 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH.
R2 BY ADVS. SRI.ANIL K.NARENDRAN
SRI.S.RAJEEV.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
09-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 2686 of 2008 (E)
APPENDIX
PETITIONERs ANNEXURES :-
ANNEXURE A : TRUE COPY OF THE JUDGMENT W.P(C)
NO.36275/2007 DATED 4-1-2008 PASSED BY THE
HON'BLE HIGH COURT OF KERALA.
ANNEXURE B : TRUE COPY OF THE PETITION FILED UNDER
SECTION 173(8) CR.P.C
ANNEXURE C : TRUE COPY OF THE ORDER OF CMP 1110/2008 IN
CRIME NO.318/2007 PASSED BY THE JFMC
NEDUMKANDAM.
ANNEXURE D : TRUE COPY OF THE ACKNOWLEDGMENT DATED
5-3-2004.
ANNEXURE E & E1 : TRUE COPY OF THE PETITIONS FOR
WITHDRAWING THE CASE DATED 12-3-2004.
ANNEXURE F & F1 : TURE COPY OF THE CHEQUE LEAVES DATED
25-4-05, 26-4-05.
ANNEXURE G : TRUE COPY OF THE CRIMINAL COMPLAINT DATED
16-7-05.
ANNEXURE H : TRUE COPY OF THE REQUEST LETTER OF THE
NISAR DATED 10-1-07.
ANNEXURE I : TRUE COPY OF THE ORDER DATED 31-10-07
SHOWING THE NAME OF 2ND RESPONDENT.
ANNEXURE J : TRUE COPY OF THE REFER REPORT DATED 30-1-07
RESPONDENT'S ANNEXURES :-
ANNEXURE R2(a) : TRUE COPY OF ORDER SHEET IN S.T.NO.1028/2005
ON THE FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE'S COURT, NEDUKANDAM.
ANNEXURE R2(b) : TRUE COPY OF ORDER SHEET IN S.T.NO.1029/2005
on the FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE'S COURT, NEDUKANDAM.
ANNEXURE R2(c) : TRUE COPY OF RECEIPT DATED 10-3-2004, ISSUED
BY THE PETITIONER.
//TRUE COPY//
P.A TO JUDGE
amk
A.HARIPRASAD, J.
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Crl.M.C.No.2686 of 2008
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Dated this the 9th day of April, 2013.
O R D E R
Petition under Section 482 Cr.P.C. Petitioner is the proprietor of a business concern called M/s.Kerala Trading Company. One Ismail Kunju came to the shop of the petitioner and purchased certain articles. He issued two cheques for Rs.20,000/- and Rs.25,000/- . When the cheque was dishonoured, petitioner filed complaints against Ismial Kunju under Section 138 of Negotiable Instruments Act (for short 'N.I.Act') through the 2nd respondent, who is a practicing lawyer. During the pendency of the cases, 2nd respondent allegedly colluded with the accused and accepted an amount of Rs.18,000/- and two signed cheques, without the consent or knowledge of the petitioner. He was not authorized by the petitioner to settle the matter. Withdrawal of the two cases by the 2nd respondent was without any authority. Later, he filed two cases by using the cheques alleged to have been subsequently issued by Ismail Kunju. Accused Ismail Kunju did Crl.M.C.No.2686 of 2008 2 not appear before the trial court. Therefore, petitioner personally went to Kollam and met Ismail Kunju and then came to know that the 2nd respondent cheated him. Therefore, the petitioner filed a complaint against the 2nd respondent before the Judicial First Class Magistrate Court, Nedumkandam alleging offences punishable under Sections 406, 417, 420 and 468 I.P.C. That complaint was forwarded by court under Section 156(3) Cr. P.C for investigation. Though, police registered crime No.318/2007 against the 2nd respondent, no action was taken in that matter. Therefore, petitioner filed a writ petition as W.P.(C) No.36275/2007 before this court for directing the police authorities to conduct a fair and proper investigation in the matter. This court as per judgment dated 4-1-2008 disposed the matter with a direction that the petitioner may either file a protest complaint as the police had filed a refer report or the petitioner can approach the Magistrate and request to order a further investigation in the matter under Section 173(8) Crl.M.C.No.2686 of 2008 3 Cr.P.C. Pursuant to that direction, the petitioner filed Annexure B before the learned Magistrate, requesting to order further investigation in the complaint. Annexure C is the order passed by the learned Magistrate in that matter. After discussing the facts, learned Magistrate found that Annexure B shall be treated as protest complaint and the petitioner was directed to appear before the court and also to produce witnesses.
2. It is the contention of the petitioner that learned Magistrate should have ordered investigation of the case through some other agency under Section 173(8) Cr.P.C. Learned counsel for the 2nd respondent submitted that the Supreme Court in Central Bureau of Investigation v. State of Rajasthan and another, (A.I.R 2001 S.C.C 668) held that Magistrate can order investigation only through a police officer in charge of a police station. He cannot direct the C.B.I for conducting investigation. This decision has been considered by the learned Magistrate.
Crl.M.C.No.2686 of 2008 4
3. Section 202 Cr.P.C empowers the Magistrate either to conduct enquiry by himself or through a police officer or by such other person as the Magistrate thinks fit. I find that Magistrate has exercised his jurisdiction correctly and there is no illegality in Annexure C order passed by the Magistrate. Apprehension of the petitioner is that he may not be able to procure the presence of witness for establishing his case. This apprehension can be repelled, if the Magistrate invokes his power to summon the witnesses, when he himself is conducting the enquiry or he has the option to send it for police for enquiry. Therefore, I find there is no merit in the petition. Hence, this petition is dismissed with the above observations.
Sd/-
A.HARIPRASAD, JUDGE.
//True Copy// P.A to Judge amk