SHAJI v. THE DIRECATOR GENERAL OF POLICE

R.BASANT, J.----------------------W.P.C.No.2264 of 2009----------------------------------------Dated this the 28th day of January 2009J U D G M E N T The petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. That prosecutionis in respect of a cheque for Rs.12,00,000/-. Cognizance has been taken. To claim the money due under the said cheque, acivil suit has also been filed by the petitioner. Thoseproceedings are pending as C.C.No.1/08 before the learnedJ.F.C.M Karunagappally and O.S.No.600/2007 before the Subordinate Judge, Ernakulam. According to the petitioner, while those proceedings were pending, only to vex and harass the petitioner, the 4th respondent (accused/defendant in the said proceedings) has lodged a complaint before the police and the police have obliged the 4th respondent by registering a crime. Ext.P1 is the F.I.R. Ext.P2 is the final report in that crime. According to the petitioner, no worthwhile investigation has been conducted in to that crime. The superior police officials were compelling the petitioner for a settlement of the prosecution under Section 138 of the Negotiable Instruments Act W.P.C.No.2264/092and the civil suit; but the petitioner did not oblige. The final report has vexatiously been filed against him. If a proper investigation were conducted, the truth would have been revealed. The petitioner has a grievance that the investigating officer did not even advert to the fact that an earlier prosecution under Section 138 of the Negotiable Instruments Act and a civil suit were pending, they having been initiated long prior to the first information report in this case. The short request of the petitioner, in these circumstances, is that a further investigation may be directed to be conducted under Section 173(8) Cr.P.C.

The petitioner's grievance will certainly have to be looked into. But the petitioner shall have to explain why, instead of moving the learned Magistrate for getting a further investigation conducted under Section 173(8) Cr.P.C., he has rushed to this court with this writ petition. Existence of an equally efficacious alternative remedy must certainly prompt this court to discourage petitions like the instant one under Article226 of the Constitution of India being filed before this court. Thepetitioner, it is trite after the decision in Shaji v. State of Kerala [2003(2) KLT 929], has the right to move the learned W.P.C.No.2264/093Magistrate under Section 173(8) Cr.P.C. Without and before exhausting that equally efficacious alternative remedy under Section 173(8) Cr.P.C., I find no merit or justification in the prayer to invoke the jurisdiction under Article 226 of the Constitution of India.