D. Sreedevi, J.

1. Petitioner is the accused in C.C.No.23/98 on the file of the Judicial First Class Magistrate Court, Taliparamba. The first respondent is the sister inlaw of the petitioner, who is the complainant in the above case. The complaint was filed for prosecuting the petitioner under S.420 IPC. The complaint of the petitioner therein is that the petitioner's husband Vasudevan, who was working as an Assistant Executive Engineer in K.S.E.B., died while in service, in April, 1991. He had left behind his mother Lekshmi, petitioner and two sons as his legal heirs. In order to get the service benefits of Vasudevan, mother Lekshmi executed a Power of Attorney in favour of the petitioner on 16-9-1991. Accordingly, the petitioner received the service benefits. Out of that, the petitioner had given 1/4 share to mother Lakshmi.

2. According to the petitioner, mother Lekshmi received her due share of the benefits. While so, on 24-1-1997 Annexure 1 lawyer notice was issued to the petitioner on behalf of Lakshmi stating that the registered will as well as the Power of Attorney executed by her are thereby cancelled and the petitioner shall not thereafter act as her Attorney. After that, the petitioner received Annexure-II registered lawyer notice issued at the instance of the first respondent herein stating that the property left by the deceased Vasudevan has to be partitioned into four equal shares and one such share shall be allotted to the petitioner.

3. It is mentioned in Annexure II that eventhough the petitioner received the service benefits, due share has not been given to the mother and hence she has filed a complaint under S.420 IPC against the petitioner. It is also mentioned in Annexure II that the petitioner, her parents and the KSEB officials cheated her mother. The petitioner sent Annexure III reply. The petitioner later came to know that a non bailable warrant has been issued against her. She entered appearance and obtained bail. Annexure IV is the copy of the complaint filed by the respondent. The learned magistrate conducted an enquiry under S.202 Cr.P.C. by examining two witnesses and taken cognizance of the offences. Therefore, the petitioner has filed this Crl.M.C. to quash the complaint on various grounds.

4. According to the petitioner, since the allegation in the complaint as well as the oral testimony, if taken as a whole, will not attract S.420 IPC. Therefore, it is submitted that the learned Magistrate ought not have taken cognizance against the petitioner, since the whole allegation is focused on the alleged withholding of the due share of the service benefits of deceased Vasudevan to the mother of the complainant. The remedy of the complainant is to file a suit for account or suit for partition. It is also submitted that there is no elements of criminal offence in this transaction.

5. Annexure IV is the complaint filed by the respondents before the Trial Court. On going through the complaint, what I find is that the respondent's mother has a right to claim her due share of the service benefits of the deceased and also over the property belonging to the deceased. Learned counsel for the petitioner invited my attention to the decision reported in Madhavrao Jiwaji Rao Scindia and another, etc. v. Sambhajirao Chandrojirao Angre and others, etc. (AIR 1988 SC 709) to quash criminal proceedings. In that case the Apex Court held as follows:

"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultima