IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 Crl.MC.No. 1211 of 2011() ------------------------------ CC.580/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... PETITIONER/ 1ST ACCUSED: --------------------------------- SHIBU, S/O.APPIAN, KUZHYVILA VEEDU, KARIPRACONAM, PERUMPAZHUTHOR. BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENTS/STATE & DEFACTO COMPLAINANT: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. THULASEEDHARAN, KIZHAKKEKARA PUTHEN VEETTIL, MANDANNOOR DESOM, MARANALLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 532. R1 BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR R2 BY ADV. SRI.BLAZE K.JOSE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DG Crl.MC.No. 1211 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE I : CERTIFIED COPY OF THE FINAL REPORT IN C.C.1308/2003 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT - 1, NEYYATTINKARA. ANNEXURE II : COPY OF THE COMPLAINT DATED 27.08.2001 FILED BY THE PETITIONER. ANNEXURE III: COPY OF THE COMPLAINT DATED 22.06.2007 FILED BY THE PETITIONER BEFORE THE CHIEF POST MASTER GENERAL, KERALA CIRCLE. ANNEXURE IV : COPY OF THE ACKNOWLEDGEMENT RECEIPT FROM THE POST MASTER GENERAL'S OFFICE. ANNEXURE V : COPY OF THE JUDGMENT DATED 04.10.2008 IN C.C.NO.1308/2003 OF THE JUDICIAL 1ST CLASS MAGISTRATE'S COURT - I, NEYYATTINKARA. RESPONDENT'S ANNEXURES - NIL /TRUE COPY/ P.A.TO JUDGE DG N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 1211 of 2011 ------------------------------------------ Dated this the 3rd day of December, 2011 ORDER The petitioner was the first accused in CC.580/08. The case was originally taken on file by the learned Magistrate as CC.1308/03 where the petitioner was arrayed as the first accused. The charge against the petitioner and the second accused therein was under Section 332 r/w 34 IPC. Since the accused was absconding, the case against him was split-up and re-filed as CC.580/08. The other accused faced the trial. PW1 to PW7 were examined in that case and Ext.P1 to P3 were marked. Ext.D1 to D8 were also marked. After trial, the second accused therein was acquitted by the learned Magistrate. 2. The petitioner contends that since the second accused has already been acquitted by the learned Magistrate, the case against the petitioner has to be quashed. The de facto complainant who is the second respondent opposed the said petition complaining that the verdict of acquittal placed by the trial court as per Crl.M.C.No. 1211 of 2011 -: 2 :- Annexure – 5 judgement is only as against the second accused and that it was the first accused against whom serious allegations were made by the second respondent. Petitioner contends that the learned Magistrate had analysed the evidence in entirety and disbelieved the entire prosecution case and so no purpose will be served by asking this petitioner to face the trial. 3. It is seen that the evidence given by PW1 was to some extent corroborated by PW2 and PW3. The fact that when the evidence as against the second accused was analysed and appreciated, the trial court was not inclined to place reliance on their testimony to find the second accused guilty is no reason to hold that the case against the first accused has to be quashed under Section 482 Cr.P.C. No doubt, the petitioner may be able to rely upon the contradictions brought out in the evidence of PW1 to PW3 in CC.1308/03 and also other circumstances mentioned by the learned Magistrate in Annexure -5 judgement to fortify Crl.M.C.No. 1211 of 2011 -: 3 :- the contentions raised by the petitioner that the case was filed against him and A2 only because of the complaint lodged by the petitioner against the accused before his superior officers regarding the non-payment of the money sent by the petitioner to his parents as per the money order. According to the petitioner, the case was filed by the first respondent only because the petitioner happened to file the complaint against the second respondent regarding non-payment of the money sent by money order. It is also pointed-out by the petitioner that though the alleged incident took place on 01.09.2001, the First Information Statement was recorded only on 07.09.2001 from the hospital. The court below has observed that there was no proper explanation for the delay in lodging the First Information Statement. The further aspect, that has been pointed out by the learned counsel for the petitioner is that, the evidence given by PW2 and PW3 before the court below was against the statements given by them to the police and Crl.M.C.No. 1211 of 2011 -: 4 :- that so many contradictions occurring in their statements were also marked. According to the petitioner it is not possible for the prosecution to get over all those legal hurdles and contradictions and so the learned counsel submits that the prosecution as against this petitioner would be only a sheer exercise in futility. Though the argument advanced on behalf of the petitioner is quite attractive, the fact remains that the petitioner has not faced the trial. Though the evidence given by the prosecution witnesses in the earlier case may have relevance (to prove the contradictions) in the trial to be had against the petitioner, still it has to be said that the evidence already recorded was only against the second accused therein and as such it cannot be said that the entire substratum of the prosecution is shattered so as to allow quashment of the charge against the petitioner. Therefore, in the light of the Full Bench decision in Moosa vs. S.I. of Police 2006 (1) KLT 552, the request to quash the proceedings in Crl.M.C.No. 1211 of 2011 -: 5 :- CC.580/08 of JFCM -I, Neyyattinkara cannot be sustained. This petition is accordingly dismissed. The petitioner can file petition before JFCM – I, Neyyattinkara to seek exemption from personal attendance before court on the ground that he is serving in BSF in a north Indian state. Perhaps he may have to be present on the date posted for the examination of de facto complainant and the eye witnesses and also on the date posted for examination under Section 313 Cr.P.C., if the learned Magistrate so directs. This Criminal M.C. is disposed of accordingly. N.K. BALAKRISHNAN, JUDGE smvd