Kerala High Court
K.Suresh vs K.Damodaran on 5 December, 2008
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4713 of 2008()
1. K.SURESH, MANAGING PARTNER, SOUBHAGYA LA
... Petitioner
2. ANITHA SURESH, W/O.K.SURESH,
Vs
1. K.DAMODARAN, S/O.CHINDAN, AGED 54 YEARS
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.C.K.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :05/12/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 4713 of 2008
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Dated this the 5th day of December, 2008
ORDER
The petitioners face allegations in a prosecution for the offence punishable under Sec.420 read with Sec.34 IPC. Cognizance has been taken on the basis of a private complaint filed by the de facto complainant. Respondent/de facto complainant was prosecuted by the petitioner for the offence under Sec.138 of the Negotiable Instruments Act The defence set up by the respondent/de facto complainant in that prosecution under Sec.138 of the N.I. Act has been accepted and he has been acquitted. The complainant had raised a complaint before the learned Magistrate that he has been fraudulently deceived and the offence under Sec.420 IPC has been committed against him by the accused herein who are the functionaries in respect of a private limited company which Crl.M.C. No. 4713 of 2008 -: 2 :- was the complainant in the prosecution under Sec.138 of the N.I. Act.
2. Cognizance has been taken by the learned Magistrate. The petitioners have not entered appearance before the learned Magistrate so far. The short contention raised by the learned counsel for the petitioners is that a false version has been advanced by the complainant to make out a defence in the prosecution under Sec.138 of the N.I. Act. In these circumstances, it is prayed that cognizance taken against the petitioners may be quashed invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C.
3. I shall carefully avoid any detailed reference to the facts. I shall not embark on discussions about the acceptability of the allegations or the credibility of the materials relied on. Suffice it to say that I am not persuaded to agree that this is a fit case where the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. can or ought to be invoked in favour of the petitioners.
4. An indictee facing undeserved criminal prosecution does, of course, have the right to claim premature termination at the threshold. In a warrant offence cognizance in which has been taken on the basis of a private complaint, such premature termination can be claimed by discharge at the stage of Sec.245 Crl.M.C. No. 4713 of 2008 -: 3 :- (2) Cr.P.C. or later at the stage of Sec.245(1) Cr.P.C. after the pre-charge enquiry under Sec.244 Cr.P.C. Ordinarily and normally premature termination must be claimed by resort to such ordinary provisions of the Code. In an exceptional case where the ends of justice compellingly demand such course, this Court would certainly be justified in invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. I find absolutely no reason in the instant case to invoke such jurisdiction.
5. In the result, this Crl.M.C. is dismissed. Needless to say, the dismissal of this petition will not in any way fetter the rights of the petitioners to claim premature termination of the proceedings by discharge at the stage of Sec.245(2) and/or Sec.245(1) Cr.P.C. The learned Magistrate shall consider such contention and take appropriate decision. Needless to say, the petitioners can seek expeditious consideration of their prayer for discharge after they enter appearance before the learned Magistrate
6. Hand over a copy of this order to the learned counsel for the petitioners.
Sd/-
(R. BASANT, JUDGE)
Nan/ //true copy/ P.S. to Judge
Crl.M.C. No. 4713 of 2008 -: 4 :-