RADHAKRISHNAN P R Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are the accused in C.C.No.473 of 2004 on the file of the Judicial First Class Magistrate Court, North Paravur. They are indicted for offences punishable under sections 465, 468 read with S. 34 of the Indian Penal Code. This criminal miscellaneous case has been filed with a prayer to quash Annexure-A1 complaint and all proceedings in C.C.No.473 of 2004 on the file of the Judicial First Class Magistrate Court, North Paravur. The de facto complainant viz., the second respondent filed Annexure-A1 private complaint on 3.10.2003. It is alleged that while the petitioners were acting respectively as the President and Secretary of Paravur unit of the Nair Service Society they had recorded in the minutes that on 13.6.1999 a resolution was passed in the General Body to take loan for an amount of Rs. 15 lakhs to clear the liabilities of a shopping complex owned by NSS. It is further alleged that the General Body, had, in fact, dissolved without taking any such decision and they had falsely recorded passing of such a resolution in the minutes for the purpose of cheating. The learned Magistrate took cognizance on Annexure-A1 complaint and issued summons to the petitioners. It is in the said circumstances that this criminal miscellaneous case has been filed with the aforementioned prayers.

(2.) Evidently, the allegation in Annexure-A1 complaint is that the petitioners herein viz., accused Nos. 1 and 2 have committed offences punishable under sections 465, 468 read with S. 34 I.P.C. Bi-fold contentions have been raised by the petitioners. Firstly, it is contended that in relation to the very same incident that is alleged to have occurred on 13.6.1999, Annexure A3 complaint was filed by one K.A. Jayan with same set of allegations. Sworn statements of the said Jayan and two witnesses were taken by the learned Magistrate under S. 200 of the Code of Criminal Procedure. Thereupon, cognizance was taken on Annexure-A3 complaint and processes were issued to the accused/petitioners. Later, the petitioners herein appeared before the Judicial First Class Magistrate Court, North Paravur. Ultimately, Annexure-A3 complaint was dismissed for non-prosecution under S. 256(1) of the Criminal Procedure Code. It is submitted that the second respondent herein was cited as one of the prosecution witnesses in the said case and his statement was taken on oath before taking cognizance. Essentially, the contention is that since Annexure-A3 complaint was dismissed under S. 256(1) of the Criminal Procedure Code in the circumstances expatiated above, filing of a second complaint viz., Annexure-A1 is barred under S. 300 of the Criminal Procedure Code. Secondly, it is contended that Annexure-A1 complaint was filed on 3.10.2003 with a delay of 1543 days. The learned counsel for the petitioners submitted that in the said circumstances, the delay of 1543 days ought not to have been condoned by the learned Magistrate and cognizance ought not to have been taken on Annexure-A1 complaint.

(3.) I have heard the learned counsel for the petitioners, learned counsel for the second respondent and also the learned Public Prosecutor.