@JUDGMENTTAG-ORDER
M.M. Pareed Pillay, J.@mdashThis is a petition to quash the complaint. Petitioners are the accused 1 and 2. The respondent (complainant) filed the complaint before the Judicial Magistrate of the First Class, Payyannoor as C.C. 12 of 1992 alleging that Al had told complainant that he has a property at Peringom for sale, that the complainant, A1 and A2 went to the property, that after inspecting the property complainant agreed to purchase the property for Rs. 6,00,000/-, that Rs. 100/- was paid as advance, that he went to Abudabi and from there he sent draft in the N.R.I. account for Rs. 6,58,823/-, that he issued two cheque to A1 and that A1 had drawn the cheque amount. It is the specific case of the complainant that the property was purchased in the name of A1 and thus he committed offences under Sections 403, 405, 406 and 420 read with Section 34, of the IPC.
2. The learned Magistrate took cognizance of the case. Contention of the accused is that no prima facie case has been established against them and on a plain reading of the complaint it is apparent that offences alleged against them have no basis. Learned counsel for the complainant submitted that a reading of the complaint and the sworn statement disclose sufficient material for the Court to take cognizance and as the Court has taken cognizance it is futile to contend that the complaint has to be quashed.
3. In paragraph 5 of the complaint sufficient details are mentioned as regards the case set up by the complainant against the accused. Specific reference is made to the cheques sent by the complainant to A2 to be paid to A1. Though it may be possible for the accused to raise contentions to prove their innocence, the availability of the defence is not a matter to be considered at the stage when the Court has to decide whether the complaint has to be quashed. In a case where the Magistrate takes cognizance of a case, accused cannot rush to the High Court with the contention that he has several defences available and in view of it the complaint will have to be quashed. u/s 482 Cr. P.C. this Court need only consider whether the allegations in the complaint and sowrn statement disclose any offence. In an application filed u/s 482, Cr. P.C. the allegations in the complaint need alone be considered and at that stage the truth or falsity of the allegations is not relevant. Any investigation as to whether the allegations are correct or incorrect does not arise at this stage. In other words, whether the allegations are true or not do not come under scrutiny in a petition u/s 482, Cr. P.C. The prime function of the Court is to consider whether the allegations on the face of it would constitute any offence. Besides, High Court can interfere in other circumstances also.
4. The Supreme Court has highlighted salient points for consideration in a petition u/s 482, Cr. P.C. and held that in the following circumstances the High Court can interfere :
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (Sec
5. The power u/s 482, Cr. P.C. has to be exercised only very sparingly. The power can be certainly exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The tendency to invoke the inherent powers of the High Court to quash criminal proceedings and to rush to the High Court for that purpose in all and sundry cases has to be deprecated. The power u/s 482 can of course be exercised to render real and substantial justice to parties. But it is not fair or proper for this Court to interfere with the judicial exercise of the discretion vested in the lower Courts. Mere allegation that the complaint is likely to be rejected finally is not a matter worthy of consideration in a petition u/s 482.
6. It is always open to the accused to highlight the defence case before the trial Court itself and press for dropping of the proceedings. When the Magistrate is apprised of the position that there is no purpose in proceeding with the case or the idea of the complainant is only to harass the accused, he can use his judicial discretion and very well drop the proceedings or recall the process. The order of issuing the process is an interim order and not a judgment and it can be varied or recalled. Merely because the process has already been issued the Magistrate does not lose jurisdiction to drop the proceedings if it is established that the complaint does not disclose any offence against the accused. This has been clearly enunciated by the Supreme Court in K. M. Mathew v. State of Kerala 1992 (1) KLT 1. As the accused can raise all their contentions before the Magistrate and as the power u/s 482 has to be exercised sparingly, I do not see any reason to interfere with the judicial exercise of discretion vested in the Court below.
There is no merit in the petition. Petition is dismissed.
