Varghese @ Lesly Varghese Vs. K.X.Francis - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE22D DAY OF MAY20141ST JYAISHTA, 1936 Crl.MC.No. 5699 of 2013 ------------------------------------- C.C NO. 387/2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES), ERNAKULAM ------------- PETITIONER/ACCUSED: ----------------------------------- VARGHESE @ LESLY VARGHESE, AGED41YEARS, S/O. CHACKO, RESIDING AT KATHIATTU HOUSE, (CHAKOSON FURNITURE SHOP), NEAR LOURDE HOSPITAL, PACHALAM KARA IN CHERANELLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.A.D.SHAJAN RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. K.X.FRANCIS, S/O. XAVIER, KADAMATTUNKAL VEEDU, (ANEESH NIVAS), VADUTHALA (PEOPLES ROAD), ERNAKULAM - 682 012.

2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. R2 BY PUBLIC PROSECUTOR SRI.R.JITHESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON2205-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Msd. Crl.MC.No. 5699 of 2013 ---------------------------------- APPENDIX ---------------- PETITIONER(S)' ANNEXURES: ANNEXURE I : A TRUE COPY OF THE C.C.NO. 387/2011 FILED BY THE1T RESPONDENT BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) ERNAKULAM. ANNEXURE II : A TRUE COPY OF THE RECEIPT DATED2910-2013 ISSUED BY THE1T RESPONDENT. RESPONDENT(S)' ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE. Msd. K. Ramakrishnan, J.

============================== Crl.M.C.No.5699 of 2013 ============================== Dated this, the 22nd day of May, 2014. ORDER

This is an application filed by the petitioner to quash further proceedings in C.C.No.387/2011 on the file of Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam under Section 482 of Code of Criminal Procedure.

2. It is alleged in the petition that petitioner is an accused in C.C.No.387/2011 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. The case was taken on file on the basis of a private complaint filed by the first respondent against the petitioner alleging offences under Section 420 of Indian Penal Code. The case of the complainant in the complaint was that, the complainant purchased an Almirah by paying Rs.60,000/- and within two months of purchase it was found to be defective and thereafter an agreement was entered into between the parties whereby according to the complainant, the petitioner agreed to repay the amount of Rs.60,000/- within six months. But, he did not pay the amount. So, according to the complainant, he had Crl.M.C.No.5699 of 2013 :

2. : committed the offence under Section 420 of Indian Penal Code. Further, the first respondent had filed O.S.No.1007/2011 for realization of the amount and thereafter filed a private complaint against the petitioner requesting to send it for investigation under Section 156(3) of Code of Criminal Procedure. But, on the other hand, the learned magistrate had taken cognizance of the case after conducting enquiry under Sections 190 & 202 of Code of Criminal Procedure and taken the case on file as C.C.No.387/2011. In fact, the matter has been settled between the parties and the civil suit has been disposed of on the basis of the settlement and Annexure A2 is the receipt for payment of the amount as agreed between the parties. So, according to the petitioner, there is no purpose in proceeding with the case. No offence under Section 420 is attracted. So, the petitioner has no other remedy except to approach this court seeking the following relief: "To quash Annexure I C.C.No.387/2011 and all its proceedings in the file of the Hon'ble Additional Chief Judicial Magistrate (Economic Offences) Court at Ernakulam." 3. The case was admitted on file and notice was issued to first respondent by speed post earlier and it was returned Crl.M.C.No.5699 of 2013 :

3. : unserved and thereafter, notice to first respondent by special messenger was ordered, but, no process paid for that purpose. When the case came up for hearing today, the Counsel for the petitioner submitted that the complainant has left India and he is now in abroad and he will be satisfied by disposing the petition leaving open his right to plea for discharge or compound the matter before the court below.

4. Considering the circumstances and without completing service on the first respondent, no adjudication will be possible in this case. So, under the circumstances, this court feels that the submission made by the Counsel for the petitioner can be recorded and the petition can be disposed of as follows: The petition is dismissed as withdrawn with liberty for the petitioner to move the lower court for discharge and if the complainant is available, move that court for compound the case by filing appropriate applications before that court. Considering the fact that the case is of the year 2011, the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is directed to dispose of the case as expeditiously as possible at any rate within four months from the date of receipt of this order. Crl.M.C.No.5699 of 2013 :

4. : With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the court below immediately. Sd/- K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge