The petitioner must raise discharge contentions in the trial court before seeking higher court intervention.

O R D E R

The petitioner is the sole accused in Crime No.200/2021 of Manjeshwar Police Station, which is now pending as C.C.No.953/2021 on the file of the Judicial First Class Magistrate Court-II, Kasargod. The offence alleged against the petitioner is under Section 420 of the Indian Penal Code .

2. The prosecution case is that the petitioner borrowed an amount of Rs.15,47,000/- from the defacto complainant Bank by pledging 417.20 grams of gold ornaments. According to the defacto complainant, at the time of pledging the aforesaid gold ornaments, he represented that the gold has 22-carat purity. Later, on a random rechecking of the gold ornaments, it was found that the same were spurious gold ornaments and were of inferior quality. A complaint was submitted by the defacto complainant Bank in respect of the same, and Annexure-1 FIR was registered on the basis of this. After completing the investigation, Annexure- 2 final report was submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-2.

3. Heard Sri.Basil Chandy Vavachan, learned counsel for the petitioner and Smt Sreeja V, the learned Public Prosecutor for the State.

4. The specific case of the learned counsel for the petitioner is that going by the averments mentioned in Annexure-3 complaint submitted by the Bank, when the petitioner pledged the gold ornaments, a quality test was conducted by the Approved Valuer of the Bank wherein no deficiencies were identified by the Bank. Therefore, it is his case that, if any deficiency is found, the petitioner cannot be held responsible for the same, as at the relevant time, the gold was in the custody of the Bank.

5. On the other hand, the learned Public Prosecutor would seriously oppose the contention above. The learned Public Prosecutor would place reliance upon the statement of the Appraiser, wherein it is mentioned that, at the time of verifying the gold ornaments, the deficiency in the gold ornaments did not come out and only later when a detailed verification was done, the same was revealed.

6. After hearing both sides and considering all the relevant materials, I am of the view that this is a contention that the petitioner has to raise before the trial court and seek discharge. Since the petitioner has approached this Court without resorting to the said remedy, I am of the view that this contention need not be considered at this juncture. Therefore the petitioner can be relegated to the trial court for submitting an appropriate application.

In the result, this Crl.M.C. is closed, without prejudice to the right of the petitioner to submit the necessary application and seek discharge before the trial court. At this juncture, the learned counsel for the petitioner seeks permission to move an application for discharge before the court in absentia. However, in my view, the same is also a matter to be considered by the trial court and the disposal of this Crl. M.C. shall be without prejudice to the said right as well.