Jagannatha Prasad vs Rajendra Prasad
2021 Latest Caselaw 23954 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                       THE HONOURABLE MR. JUSTICE K.HARIPAL

           MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

                                CRL.MC NO. 3887 OF 2021

AGAINST THE ORDER/JUDGMENT IN CC 335/2016 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM



PETITIONER/1ST ACCUSED:

             JAGANNATHA PRASAD
             AGED 65 YEARS
             S/O.SAHADEVAN, C.S.SADANAM, KODIMATHA, KOTTAYAM-680 001
             BY ADV NISHA JOHN


RESPONDENT/COMPLAINANT AND STATE:

      1      RAJENDRA PRASAD
             S/O. SAHADEVAN, A44 BROOK, HEAVEN, JVL ROAD, JOGESHWARI EAST, MUMBAI-
             60, NOW RESIDING AT A-C, CENTURY TOWERS, M.C ROAD, KOTTAYAM-1
      2      THE SUB INSPECTOR OF POLICE,
             KOTTAYAM WEST POLICE STATION, KOTTAYAM DISTRICT
      3      THE STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
             ERNAKULAM
             BY ADVS.
             V.JOHN MANI
             P.V.CHERIAN
             SREERAM P.
             S.JAYANT
             VARGHESE SABU


OTHER PRESENT:

             SR.PP - SRI. HRITHWIK C.S.



      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT

ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C. No. 3887 of 2021

                                      2




                                     ORDER

Petitioner is the 1st accused in C.C. No. 335 of 2016 pending

before the Judicial First Class Magistrate's Court-III, Kottayam,

where he, along with others, face allegations under Sections 191,

198, 199, 420, 464, 468, 471, 205, 120-B, read with Section 34 of

the IPC.

2. It is a crime of the year 2014 based on a complaint

preferred by the 1st respondent which was referred for investigation

and after the investigation charge sheet was laid and thus the case

has been taken on file as C.C. No. 335 of 2016. Earlier the

petitioner had moved this Court with Crl. M.C. No. 7169 of 2017

seeking the very same relief for quashing the proceedings on

merits. But this Court was not convinced and by order dated 17th

January 2018 that Criminal Miscellaneous Case was disposed of

leaving liberty of the petitioner to move the trial Court for

discharge under Section 239 of the Cr.P.C.

3. The learned counsel for the petitioner submits that by virtue

of the order dated 17th January 2018 the principles of res judicata Crl.M.C. No. 3887 of 2021

are not applicable, at that time the learned counsel had failed to

bring to the notice of this Court certain vital authorities of the

Supreme Court on the subject, that there is no prima facie case

against him, in respect of a cause of action arose in 1983, the

complaint was preferred only in 2014, on that ground alone the

proceedings are liable to be set aside.

4. In fact, these are valid grounds that could be raised by the

petitioner seeking a discharge under Section 239 of the Cr.P.C. The

learned counsel for the 1st respondent has stated that the petitioner

has already filed a petition for discharge under Section 239 of the

Cr.P.C. which is pending before the trial Court. At this stage, it is

not understood as to why the petitioner has moved this Court again

seeking the same relief. Even though res judicata is not applicable,

principles of res judicata will apply so long as the order in

Crl. M.C. No. 7169 of 2017 has not been challenged.

5. This Court, for obvious reasons, cannot go into the merit

of the case. The application for discharge is still pending before the

trial Court. Therefore, the Criminal Miscellaneous Case is disposed Crl.M.C. No. 3887 of 2021

of directing the learned Judicial First Class Magistrate's Court-III,

Kottayam to dispose of the petition filed under Section 239 of the

Cr.P.C. within a period of three months from the date of receipt of a

copy of this order.

The Criminal Miscellaneous Case is disposed of as above.

Sd/-

K. HARIPAL JUDGE RMV/13/12/2021

APPENDIX OF CRL.MC 3887/2021

PETITIONER ANNEXURES Annexure I TRUE COPY OF THE FIR DATED 17.09.2014 IN CRIME NO.1559/2014 Annexure II TRUE COPY OF THE PRIVATE COMPLAINT DATED 19.06.2014 FILED BY 1ST RESPONDENT Annexure III TRUE COPY OF THE COMMON ORDER IN IA NO.2460/2012 AND 2461/2012 IN OS NO.345/1987 DATED 28.09.2013 OF SUB COURT, THIRUVANANTHAPURAM Annexure IV TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY KOTTAYAM MUNICIPALITY DATED 21.01.1997 FOR THE BUILDING CONSTRUCTED BY 1ST RESPONDENT Annexure V TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY DISTRICT REGISTRAR KOTTAYAM Annexure VI TRUE COPY OF THE UNDER VALUATION NOTICES DATED 28.07.1998 ISSUED BY THE DISTRICT REGISTRAR GENERAL KOTTAYAM Annexure VII TRUE COPY OF THE PLAINT IN OS NO.664/2008 BEFORE SUB COURT, KOTTAYAM Annexure VIII TRUE COPY OF THE JUDGMENT DATED 13.01.2012 IN CIVIL APPEAL NO.4446/2006 OF HON'BLE SUPREME COURT Annexure IX TRUE COPY OF THE FINAL REPORT DATED 11.02.2016 BY 2ND RESPONDENT Annexure X TRUE COPY OF THE LETTER WRITTEN BY 1ST RESPONDENT TO HIS FATHER Annexure XI TRUE COPY OF THE JUDGMENT IN CRL MC NO.7169/2017 DATED 17.01.2018

TRUE COPY

P.A.TO JUDGE