IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.MC.No. 1105 of 2010(C) ------------------------------ CC.26/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... PETITIONER(S): ACCUSED 1 & 2 ------------------------------------ 1. T.F.PAUL S/O. FRANCIS, THARAKAN HOUSE, A3, JINS SQUIRE, HAMSA KUNJU LANE, S.R.M.ROAD, COCHIN-18. 2. ELIZABETH PAUL W/O. T.F.PAUL, THARAKAN HOUSE, A3, JINS SQUIRE, HAMSAKUNJU LANE S.R.M ROAD, COCHIN-18. BY ADV. SRI.SAIGI JACOB PALATTY RESPONDENT(S): COMPLAINANT /STATE --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, CHAVAKKADU POLICE STATION. 3. THE BRANCH MANAGER, M/S. VIJAYA BANK LTD CHAVAKKAD BRANCH. R1 & R2 BY PUBLIC PROSECUTOR P.A. SALIM R3 BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.1105 OF 2010 --------------------------------------------- Dated 31st August, 2010 O R D E R Petitioners are the accused in C.C.26/2009 on the file of Judicial First Class Magistrate's court, Chavakkad taken cognizance for the offences under Sections 465 and 420 read with Section 34 of Indian Penal Code. Prosecution case is that first petitioner availed a loan of Rs.1,25,000/- from third respondent Vijaya Bank with second petitioner as surety, after mortgaging 24.749 cents in Survey No.66/1 and 7 cents in Survey No.66/2 in Marathakkara village and petitioners failed to repay that amount and with an intention to cheat the Bank, they transferred the mortgaged properties and thereby committed the offences. The petition 2 is filed under Section 482 of Code of Criminal Procedure to quash the final report contending that subsequently the petitioners discharged the entire debt due to the third respondent Bank, evidenced by Annexure-C certificate issued by the Bank and there was no intention to cheat and therefore, the case is to be quashed. 2. Learned counsel appearing for the petitioners, learned counsel appearing for the third respondent and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that the petitioners had no intention whatsoever to cheat the third respondent Bank and in fact they have subsequently cleared all the liability and obtained Annexure-C certificate and in such 3 circumstances, the case is to be quashed. Learned counsel appearing for the third respondent pointed out that third respondent lodged the complaint at a time when the petitioners failed to repay the amount due and also transferred the mortgaged properties in spite of the mortgage and subsequently the petitioners have paid the entire amount due and in such circumstances, the third respondent has no subsisting grievance. 4. Fact that properties of the first petitioner was mortgaged, for a loan of Rs.1,25,000/- availed by the first petitioner with second petitioner as surety is admitted. Prosecution case is that with the intention to cheat the Bank properties were transferred. There was no case for the prosecution that when loan of Rs.1,25,000/- was availed by 4 mortgaging the properties, petitioners have any intention to cheat. The only allegation is that subsequently the mortgaged properties were transferred without the permission or consent of the Bank. Even if, there was a transfer of the properties when there is a subsisting mortgage, the transfer could only be subject to the mortgage. In such circumstances, I find no reason to continue the prosecution, when it is admitted by the third respondent that entire amount in the loan transaction due to the Bank from the petitioners were already cleared. In such circumstances, petition is allowed. C.C.26/2009 on the file of Judicial First Class Magistrate, Chavakkad is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.