IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 797 of 2009(B) ------------------------------------ CP.NO.63/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER/ ACCUSED NO.3: ------------------------------------------- T.B.PRADEEP, AGED 43 YEARS, S/O.LATE T.K.BALAN, THYVALAPPIL HOUSE, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. MR.NIREESH MATHEW. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MATHILAKOM, THRISSUR DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 797 of 2009-B ================== Dated this the 3rd day of June, 2009. O R D E R Petitioner is the third accused in C.P.No.63/2008 on the file of Judicial First Class Magistrate Court, Kodungallur. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure B final charge in Crime No.207/2008 of Mathikalam Police Station and taken cognizance as C.P.No.63/2008 by Judicial First Class Magistrate Court, Kodungallur and now pending before Sessions Court, Thrissur. As per Annexure B final report submitted by Sub Inspector of Police under Section 173(2) of Code of Criminal Procedure, third accused committed offences under Sections 55A and 420 of Indian Penal Code. The allegation is that second accused is the licensee of Toddy Shop No.26 of Kodungallur Excise Range Crl.M.C.No.797/2009-B -2- and on 16-3-2008 at 9 AM the excise officials conducted a search and then toddy was found in the Toddy Shop without entering in the stock register. First accused is the employee alleging that it was with the knowledge of second accused, 35 litres of toddy was stored without authority in a room to the east of T.S.No.26 and that in the stock register wrong entry was recorded by third accused and all of them thereby committed the offences. 2. Learned Counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Learned Counsel for the petitioner pointed out that the allegation against the petitioner in Annexure B final report is only that he had entered wrong entry in the stock register and as is clear from the purpose of examination of the charge witnesses that aspect is sought to be proved by CW5 Raju, the Manager of the toddy shop and even if that is accepted, no offence under Abkari Act is involved and no offence under Section 420 of Indian Penal Code also will not Crl.M.C.No.797/2009-B -3- be attracted against petitioner and therefore the case as against petitioner is to be quashed. 4. Learned Director General of Prosecution, in the light of the records available in the Case Diary, submitted that as per the records no offence under the Abkari Act is attracted as against the petitioner the only allegation being that he made a fraudulent entry in the stock register. 5. It is also not disputed that even the said allegation is solely based on the subsequent statement of CW5 recorded by the investigation officer and the handwriting in the stock register was not sent to an expert to verify whether it is that of petitioner and so in the light of the materials now available, petitioner cannot be implicated for an offence under the provisions of Abkari Act. Similarly, ingredients of an offence under Section 420 of Indian Penal Code is also not made out as against the petitioner, even if the allegations in the final report as such are accepted. Crl.M.C.No.797/2009-B -4- 6. In such circumstances, it is an abuse of process of court to proceed against the petitioner. Hence the Crl.M.C. is allowed. Annexure B final report and proceedings initiated against the petitioner alone in Annexure B report in C.P.No.63/2008 and pending before the Sessions Court after the committal, are quashed. M.SASIDHARAN NAMBIAR JUDGE dkr