Dismissed

C.S. Harikumar v. State of Kerala

Kerala HC15 Sept 2008Crl.MC/68/2008

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Sec. 482 Cr.P.C. seeking quashment of proceedings for cheating and criminal breach of trust, the High Court of Kerala observed that the petitioner failed to produce the private complaint. Consequently, the court dismissed the petition and directed the petitioner to seek premature termination via discharge proceedings under Sec. 239/240 Cr.P.C. instead of

What did the court decide?

Petition under Sec. 482 Cr.P.C. dismissed. Petitioner directed to seek premature termination of proceedings by discharge under Sec. 239/240 Cr.P.C.

C.S. Harikumar Vs State of Kerala — Quashing and FIR | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT

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MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930

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Crl.MC.No. 68 of 2008() ----------------------CC.2170/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI

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PETITIONER: ACCUSED

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C.S.HARIKUMAR, S/O D.CHANDRASEKHARAN NAIR, AGED 45, COMPUTER PUBLICATION, V.J.LANE, VELLAYAMBALAM, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.M.R.SARIN SRI.M.R.SASITH SRI.P.SANTHOSHKUMAR (KARUMKULAM) SRI.KIRAN SANKAR

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RESPONDENTS: STATE & DEFACTO COMPLAINANT

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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ARUN, ASSISTANT MANAGER, COLLECTION FIELD OFFICER, IDEA MOBILE COMMUNICATION LTD., II FLOOR, L.G.TOWER, THOPPUMPADY, KOCHI.

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BY PUBLIC PROSECUTOR SRI. GIKKU JACOB.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R. BASANT, J.

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------------------------------------------------Crl.M.C. No.68 of 2008

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Dated this the 15^th day of September, 2008

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ORDER

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The petitioner faces indictment in a prosecution for offences punishable under Secs.406 and 420 IPC. Cognizance has been taken on the basis of a final report filed by the police after due investigation. The crime, in turn, was registered on the basis of a private complaint filed before the learned Magistrate and referred by the learned Magistrate to the police under Sec.156(3) Cr.P.C. Cognizance has been taken. The petitioner has not appeared before the learned Magistrate so far, submits the learned counsel for the petitioner. The petitioner has come before this Court at this stage with a prayer that the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. may be invoked to quash the complaint against him.

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Crl.M.C. No.68 of 2008 -: 2 :-

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The counsel submits that on the face of it the allegations cannot stand as the charge sheet only shows that the petitioner had omitted to pay an amount of Rs.86,021.86 due to the complainant/company from the petitioner as charges for telephone calls. The complaint on the basis of which the crime has been registered is not produced before this Court.

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While I find substance in the prayer of the petitioner for premature termination of proceedings against him, I am not satisfied that adequate materials have been placed before this Court. As stated earlier, even the complaint filed against him before the learned Magistrate has not been produced. I am satisfied, in these circumstances, that the petitioner must be relegated to seek ordinary and normal procedure for premature termination of an indictment under the Code. In a warrant offence take cognizance of on the basis of a police report, such premature termination must be claimed by discharge at the stage of Sec.239/240 Cr.P.C. In an exceptional case, this Court can, of course, invoke the extraordinary inherent jurisdiction to ensure premature termination of the proceedings. But in the absence of sufficient data placed before me, I am satisfied that it is not necessary in this case to invoke such jurisdiction.

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Crl.M.C. No.68 of 2008 -: 3 :-

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In the result:

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(a) This Crl.M.C. is dismissed.

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(b) It is made clear that it shall be open to the petitioner to

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seek premature termination of the proceedings by discharge under Sec.239 Cr.P.C. I make it clear that I have not intended to express any opinion on merits on the eligibility of the petitioner for such discharge. The petitioner can raise his plea and the learned Magistrate must consider the same on merits and take appropriate decision.

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(c) Until a decision is taken on the question of framing charge under Sec.239/240 Cr.P.C., the personal presence of the petitioner need not be insisted if he is represented by counsel before court.

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(d) Only if the learned Magistrate takes a decision to frame charges against the petitioner, need the personal presence of the petitioner be insisted if the petitioner is represented by his counsel.

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Sd/-

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(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge

Crl.M.C. No.68 of 2008 -: 4 :-

C.S. Harikumar v. State of Kerala

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C.S. Harikumar v. State of Kerala

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