K.Sreedharan Nair v. V.Ussain Koya
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 18TH DAY OF FEBRUARY 2015/29TH MAGHA, 1936 OP(Crl.).No. 244 of 2014 (Q) ----------------------------- CC 2823/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI =================== PETITIONERS/ACCUSED NO.2 TO 4:
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1. K.SREEDHARAN NAIR, AGED 75 YEARS S/O.MADHAVAN NAMBIAR FORMER PRESIDENT CHELEMBRA CO-OPERATIVE SOCIETY LTD. RESIDING AT CHAITHANYA, KOLAKATTUCHALIL PO MALAPPURAM DISTRICT
2. SITHARA, AGED 39 YEARS D/O.RAMADAS.P, SECRETARY CHELEMBRA CO-OPERATIVE SOCIETY LTD KOLAKATTUCHALIL PO, MALAPPURAM DISTRICT
3. MURALEEDHARAN.K.V., AGED 51 YEARS S/O.SANKUNNY NAIR, RESIDING AT SUSHAMALAYAM THENHIPALAM PO, MALAPPURAM DISTRICT BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN SRI.SIDDHARTH KRISHNAN RESPONDENT/COMPLAINT:
-------------------------------------- V. USSAIN KOYA S/O.KAMMUKUTTY, MELE KOLLERI HOUSE CALICUT UNIVERSITY PO, CHENAKKAL MALAPPURAM 673 635.
R1 BY ADV. SRI.K.K.MOHAMED RAVUF THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 18-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(Crl.)No. 244 of 2014 (Q) APPENDIX PETITIONERS' EXHIBITS ------------------------------------ EXHIBIT P1 COPY OF THE LETTER GIVEN BY THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MANJERI DATED 8/2/2010 EXHIBIT P2 COPY OF THE LETTER GIVEN BY THE JOINT REGISTRAR OF COOPERATIVE SOCIETEIS DATED 27/2/2013 EXHIBIT P3 COPY OF THE LETTER GIVEN BY THE CHELAMBRA CO-OPERATIVE URBAN SOCIETY TO THE RESPONDENT DATED 23/3/2013 EXHIBIT P4 COPY OF THE LETTER WRITTEN BY THE CHELAMBRA CO-OPERATIVE URBAN SOEICTY TO THE JOINT REGISTRAR(GENERAL),MALAPPURAM DATED 25/5/2013 EXHIBIT P5 COPY OF THE COMPLAINT FGILED BY THE RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1 PARAPPANANGADI AS CMP NO.
1628/2013 EXHIBIT P6 PROCEEDINGS INCLUDING THE SWORN STATEMENT GIVEN BY THE RESPONDENT ON 25/10/2014 NOTED BY THE LAWYER AS INSTRUCTED BY THE PETITIONERS RESPONDENT'S EXHIBITS -------------------------------------- EXT.R1 COPY OF THE RECEIPT ISSUED BY THE BANK DATED 21.10.2014 EXT.R2 COPY OF THE RECIIPT DATED 19.05.2004 ISSUED BY THE BANK EXT.R3 COPY OF THE RECEIPT DATED 03.08.2005 ISSUED BY THE BANK EXT.R4 COPY OF THE LETTER NO.CRB 1072/13/LD IS DATED 07.03.2013 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETEIS, MALAPPURAM EXT.R5 COPY OF THE LETTER DATED 10.04.2013 SENT BY THE RESPONDENT TO THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETEIS, MALAPPURAM EXT.R6 COPY OF THE LETTER DATED 04.06.2013 SENT BY THE RESPONDENT TO THE BANK EXT.R7 COPY OF THE RELEVANT EXTRACT OF THE ENQUIRY REPORT EXT.
8 DETAILS OF TRUE COPIES OF LOAN ACCOUNT OF THE RESPONDENT AND LOAN ACCOUNT OF THE 3RD PETITIONER EXT.R9 COPY OF THE PLAINT IN O.S.NO.131/2013 OF THE MUNSIFF COURT, PARAPPANANGADI EXT.R10 COPY OF THE PROTEST COMPLAINT FILED BY THE PETITIONER // TRUE COPY // P.A.
P. UBAID, J.
--------------------------------------- O.P.(Crl) No.244 of 2014 --------------------------------------- Dated this the 18th day of February, 2015
JUDGMENT
The petitioners herein are the accused Nos.2 to 4 in C.C.No.2823/2014 of the Judicial First Class Magistrate Court-I, Parappanangadi. The respondent herein is the complainant in that case. On his complaint a crime was registered by the police, but it was referred. Later, he made a complaint before the learned Magistrate directly, on which the learned Magistrate conducted enquiry as provided under the law, and took cognizance. On taking cognizance, the learned Magistrate issued notice to the 1st accused and ordered non-bailable warrant against the accused Nos. 2 to 4. The said prosecution is sought to be quashed by the accused Nos. 2 to 4, on the ground that necessary materials are not there for a prosecution against them under Sections 120(B) and 409 IPC. On hearing both sides and on a perusal of the materials, I find that cognizance was taken by the learned Magistrate after due enquiry under Sections 200 and 202 Cr.P.C. It appears that the real grievance of the petitioners
O.P.(Crl). No. 244/2014 is that without any ground or justification, the court below has ordered warrant of arrest against them. On a perusal of the cognizance order made by the learned Magistrate, I find that the learned Magistrate has not stated any special reason for issuing warrant of arrest against the accused at the first instance. It is not known why such warrant of arrest was ordered by the learned Magistrate on taking cognizance. Of course, the prayer to quash the prosecution as such cannot be now entertained. The petitioners will have to appear before the learned Magistrate and face trial. If they are really confident that necessary materials are not there, for a prosecution under Sections 409 and 120(B) IPC, they can make an application for discharge under Section 245(2) Cr.P.C.
If such a course is not possible, or if the court proceeds further, they will get another chance to make application for discharge under Section 245(2) Cr.P.C. after precharge evidence is recorded by the learned Magistrate. In this proceeding, I find it not proper to go to the merits and decide the request to quash the prosecution as such. Remedies are open to the petitioners during trial.
O.P.(Crl). No. 244/2014 the petitioners is really genuine that the learned Magistrate straight away issued warrant of arrest against them on taking cognizance. The petitioners can very well surrender before the learned Magistrate and make application for regular bail. I do not think that the learned Magistrate will mechanically remand them to judicial custody. The observations made by this Court earlier will have to be considered by the learned Magistrate in taking decision regarding bail. With the above observations this petition can be closed.
In the result, this O.P.(Crl) is closed with the above observations made by this Court.
Sd/- P. UBAID, JUDGE sd