Magistrate's Court-I, Aluva. The case is as a result of a private complaint filed by the 2nd respondent herein as complainant against A1 and A2, who is the petitioner herein, alleging offences punishable under Sections 379, 406, 420 and 425 read with Section 34 IPC.
2. The petitioner herein is allegedly the proprietor of M/s. D-Net Malayalam Digitals Pvt. Ltd., who was acting as a franchisee of the 2nd respondent herein. The petitioner used to transmit RF Signals through cables drawn on electric post to various subscribers under the petitioner. The signals from the satellite are being W.P.(C) No. 36495 of 2008 -: 2 :- received by the 2nd respondent. The 2nd respondent as franchiser had agreed to pass over the signals ultimately to the subscribers under the petitioner. In Ext.P1 agreement, it has been mentioned that on a lapse of nine months, the subscribers under the petitioner would ultimately become the subscribers under the 2nd respondent. Various terms are there in Ext.P1 agreement. In case of disputes or in case of any complaint against the petitioner, the 2nd respondent is entitled to terminate the agreement also.
3. According to Ext.P2 complaint, the petitioner has violated the terms and conditions in Ext.P1 agreement and with a view to committing misappropriation and criminal breach of trust, various connections were given to other subscribers without the knowledge and consent of the 2nd respondent and squeezed money illegally.
4. According to the learned counsel for the petitioner, when there is alleged violation of the terms W.P.(C) No. 36495 of 2008 -: 3 :- in Ext.P1 agreement, the only course open to the 2nd respondent is to have recourse to the terms of agreement and to terminate the arrangement between them. The said argument does not seem to be sound. In case, wherein an offence under the Indian Penal Code can be proved by the 2nd respondent, it cannot be said that he has to limit his rights to the terms of the agreement alone. Of course, in such case, it is a matter that should be proved by the 2nd respondent through cogent and convincing evidence.
5. The present stage is too premature to conclude that the allegations levelled against the petitioner by the 2nd respondent, are false. The present contentions taken up by the learned counsel for the petitioner are relating to the merits of the matter, based on evidence that may be tendered by the complainant. The petitioner will get sufficient opportunity to controvert the evidence of the witnesses would be examined or documents that would be produced by the 2nd W.P.(C) No. 36495 of 2008 -: 4 :- respondent before the court below, under Section 244 Cr.P.C during the pre-charge evidence.
With liberty to the petitioner to take up all these contentions before the trial court either at the stage of Section 244 Cr.P.C. or during trial, this writ petition is disposed of. As far as practicable, the court below shall grant exemption to the petitioner from personal appearance before the court below. His personal appearance shall be insisted only on the dates, on which his actual presence is required before the court below.
Sd/-
B.KEMAL PASHA, JUDGE stu