IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.MC.No. 3258 of 2011() ------------------------------- CC.35/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER/ACCUSED: --------------------------- A.T.MATHEW,S/O.THOMAS,AREECKAL HOUSE, VAZHAKUNDAM,PULINGOM AMSOM,KANNUR,NOW RESIDING AT PALA ESTATE,VENGALAPPARA,ARIVILAMCHAL.P.O, SANTHANPARA,IDUKKI DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/COMPLAINANT/STATE ----------------------------------------------- 1. THE PRESIDENT,THE PADIYOTTUCHAL SERVICE CO-OPERATIVE BANK LTD, NO.C 1519,PADIYOTTUCHAL.P.O, KANNUR DISTRICT, PIN-670 001. 2. SUB INSPECTOR OF POLICE,PERINGOM POLICE STATION,KANNUR DISTRICT-670 001. 3. STATE REP;BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,. R2 & R3 BY ADV.SRI. RAJESH VIJAYAN, PUBLIC PROSECUTOR R1 BY ADV. SMT.P.K.PRIYA THIS CRIMINAL MISC. CASE HAVING BEEN COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DG Crl.MC.No. 3258 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE -I: COPY OF THE FINAL REPORT. ANNEXURE-II: COPY OF THE IST RESPONDENT DT:29.10.2005 TO THE CIRCLE INSPECTOR OF POLICE. ANNEXURE-III: COPY OF THE ORDER IN CRL.M.C.1227/2010 OF THIS HON'BLE COURT. ANNEXURE-III(A): COPY OF THE ORDER IN CRL.MC.4691/10 OF THIS HON'BLE COURT. ANNEXURE-IV: COPY OF THE PETITIONER FILED BY THE PETITIONER BEFORE THE C0URT. ANNEXURE-V : COPY OF THE ORDER OF THE LEARNED MAGISTRATE DATED 25.3.2011 IN CMP 1016/2011. ANNEXURE-VI: COPY OF THE CHARGE RESPONDEN'S ANNEXURES - NIL /TRUE COPY/ P.A.TO JUDGE DG N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 3258 of 2011 ------------------------------------------ Dated this the 2nd day of December, 2011 ORDER Petitioner is the sole accused in CC.35/2011 of JFCM, Payyannur. The gist of the prosecution case is that when the accused worked as the Manager of the Padiyottuchal Service Co-operative bank during 04.11.2004 to 21.10.2005 CWs 2 to 5 and other persons had pledged gold ornaments on various occasions for availing loan from the bank. Those pledged gold ornaments were un-authorisedly taken by the accused/petitioner. The further allegation is that the amount remitted by CWs 6 to 8 for taking back the pledged gold ornaments were also un-lawfully retained by the accused and converted the property to his own use. The accused was the person in charge of and having domain over the properties and the amount mentioned earlier. It was also alleged that no corresponding entries were made in the account book and cash book or other books regarding the repayment of the loan amount. The total amount alleged to have been Crl.M.C.No. 3258 of 2011 -: 2 :- mis-appropriated by the accused is shown as Rs.2,58,900/- (Rupees Two lakhs fifty eight thousand nine hundred only). The main offence alleged against him is under Section 409 of IPC. It was alleged that now the bank has no grievance against the petitioner since the amount due was subsequently remitted by the petitioner. Hence the present petition is to quash the case, CC. No.35/11 pending against the petitioner. It is important to note that the petitioner had earlier moved this court by filing Criminal M.C. No.1227/10 stating that the disputes were settled amicably with the former President and present President of the bank and so prosecution has to be quashed. In that case it was submitted on behalf of the President of the bank that the money was received from the accused/petitioner. It was held by this court in that case: “The question is whether the offences alleged against the petitioner are purely personal in nature which could be quashed based on Annexure - II communication sent by bank to the police officer intimating that the bank has not sustained any loss and two days after registration of the case, petitioner has settled the account. Learned Crl.M.C.No. 3258 of 2011 -: 3 :- Public Prosecutor made available the Case Diary. Case Diary shows that petitioner, while working as the Manager of the bank, did not properly account the gold ornaments pledged and unauthorisedly removed the gold ornaments and pledged them in other banks and received money and only after registration of the crime, the said account was closed and gold ornaments were taken back to the bank. On proper appreciation of the facts, I cannot agree with the submission that offences alleged are purely personal in nature. In such circumstances, applying the principles laid down in Madan Mohan Abbot's case (supra), the case cannot be quashed.” It is inconceivable how the petitioner can again move this court stating that the proceedings against him should be quashed on the ground that the President or the present Manager or Secretary of the bank has no grievance against the petitioner or that the dispute is purely personal in nature. The charge sheet laid against the accused would clearly show that the gold ornaments were entrusted by CWs 2 to 5 and that the accused committed criminal breach of trust by retaining the same or by making use of the same for his own use. It is not known how the present President or other officers of the bank can settle the matter as if they are the only aggrieved persons. The persons who pledged Crl.M.C.No. 3258 of 2011 -: 4 :- the gold ornaments are also equally aggrieved persons since it is their property which was taken away by the accused. The contention that since Section 408 of IPC is not now made compoundable, the charge against the accused under Section 409 IPC also can be quashed is also bereft of any merit. I find no merit in this petition. It is hence dismissed. The learned Magistrate will proceed with the trial of the case. The learned Magistrate will see that witnesses including the persons who had pledged the gold ornaments (CWs 2 to 8) are also examined in this case. N.K. BALAKRISHNAN, JUDGE. Smvd Crl.M.C.No. 3258 of 2011 -: 5 :-