IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.MC.No. 3077 of 2005() ------------------------- CC.249/2005 of J.F.C.M.-II, PATHANAMTHITTA .................... PETITIONER(S): ACCUSED NO.1 & 2: ---------------------------------------- 1. C.G. GEORGE, OWNER OF KARIKKINETH TEXTILES, PATHANAMTHITTA, RESIDING AT VAIKUNDAM HOUSE, KARIMBANAKUZHI BAGAM, PATHANAMTHITTA VILLAGE. 2. ANNIE GEORGE, W/O. C.G. GEORGE, VAIKUNDAM HOUSE, KARIMBANAKUZHI BAGAM, PATHANAMTHITTA VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.K.R.RADHAKRISHNAN NAIR SMT.P.MAYA RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------- 1. AJI MOL, D/O. K. DAMODARAN, `AJI BHAVAN', MUTTATHUKONAM MURI CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.K.S.SIVA KUMAR FOR R1 SRI.SEBASTIAN PHILIP FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.11569/05 IN CRL.M.C.NO.3077/05 //DISMISSED// 19.2.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No. 3077 OF 2005 ----------------------------------------------------- DATED THIS THE 19TH DAY OF FEBRUARY , 2009 O R D E R The petitioners herein are accused Nos.1 and 2 in C.C.No.249/2005 pending before the Judicial First Class Magistrate's Court-II, Pathanamthitta. This petition is filed under Section 482 of Cr.P.C. with the prayer to quash Annexure D complaint and all further proceedings in C.C.No.249/05 pending before the above Court. 2. The statement of facts alleged in the petition are as follows: The first petitioner was conducting a family business, named 'Karikkineth Textiles'. Second petitioner is his wife. The first respondent herein was working in that business concern and on 4.9.2004, the first petitioner came to know that the first respondent herein, while working as a Computer Operator in that firm along with one Mr.Biji John, who was working as a Cashier there, had misappropriated an amount of Rs.3,20,000/- during the period from 1.7.2003 to 4.9.2004 and they were dismissed. On 15.9.2004, the first petitioner informed the police regarding the misappropriation of amount by the first CRL.M.C.No.3077/05 -2- respondent herein in pursuance of which Crime No.697/04 was filed against the first respondent herein as first accused and Mr.Biji John as the second accused, for the offences punishable under sections 408 and 477(A) read with Section 34 of IPC, which was investigated by the Pathanamthitta police. Copy of that FIR is produced as Annexure A. Subsequently, on 25.9.2004, the first respondent herein has filed a complaint before the Court of C.J.M., Pathanamthitta, copy of which is produced as Annexure B alleging offences against petitioners 1 and 2 herein under sections 342, 348, 504, 506(i), 323 and 354 read with Section 34 of IPC. That private complaint, after investigation under Section 156(3) of Cr.P.C., Crime No.729/2004 was registered and a refer report was filed, copy of which is produced as Annexure C. That refer report Annexure C was filed before the Court of C.J.M., Pathanamthitta on 2.10.2004, after giving copy of the report to the first respondent herein, the complainant in that case. Subsequently, the first respondent herein filed a protest complaint on 23.2.2005 before the Court of C.J.M., Pathanamthitta. After recording the sworn statement of the complainant and another witness, the learned C.J.M. took cognizance of the case as C.C.No.249/05 and was made over to the Court of J.F.C.M.-II, Pathanamthitta, wherein it is pending. Accordingly, this petition is filed before this Court to quash Annexure CRL.M.C.No.3077/05 -3- D complaint and further proceedings in C.C.No.249/05 pending before the Court of J.F.C.M.-II, Pathanamthitta, for the reason that continuance of the proceedings against petitioners 1 and 2 is an abuse of process of court and is liable to be quashed. 3. Heard the learned counsel appearing for the petitioners and the first respondent. 4. It is submitted by the learned counsel appearing for the petitioners that Annexure D complaint was filed by the first respondent herein against petitioners 1 and 2 after receiving copy of the refer report in the earlier complaint filed by the first respondent with the same allegations, which after conducting proper investigation by Pathanamthitta police was referred as false case as revealed from Annexure C. There was inordinate delay in filing the protest complaint, which was filed on 23.2.2005, whereas copy of the refer report was received by the first respondent on 28.1.2005 as mentioned in Annexure D. Further, it is also submitted by the learned counsel for the petitioners that in the original complaint, Annexure B and in the subsequent protest complaint Annexure D, the incident alleged against petitioners was dated 23.7.2003. Annexure B complaint and also Annexure D protest complaint were filed by the first respondent only to wreak vengeance towards the petitioners for CRL.M.C.No.3077/05 -4- the reason that the first petitioner has dismissed the first respondent from the business conducted by the first petitioner, for misappropriation of funds from the business concern, which was detected on 4.9.2004 and against whom he has proceeded criminal case and investigation of Crime No.697/04 is pending before the Pathanamthitta Police Station. Thus, according to the learned counsel, there are no sufficient reasons to proceed against the petitioners in C.C.No.249/05 and the same is liable to be quashed. At the time of argument, it was also pointed out by the learned counsel for the petitioners that the learned C.J.M., Pathanamthitta took cognizance of the above case against the petitioners without applying the mind and without conducting proper enquiry. It is alleged in this petition that cognizance of the above case was taken by the learned Magistrate after recording the sworn statement of the complainant and on examination of one witness as CW2 who was not cited as a witness in the original complaint, copy of which is produced as Annexure B. 5. All these submissions made by the learned counsel for the petitioners are opposed by the learned counsel appearing for the first respondent. It is submitted by the learned counsel for the first respondent that the first respondent was dismissed from the business CRL.M.C.No.3077/05 -5- concern by the first petitioner herein on 4.9.2004 and filed the complaint against her only on 15.9.2004. Thereafter on 25.9.2004, the first respondent filed the original complaint which was referred by the police for investigation under Section 156(3) and filed the refer report by the police on 2.10.2004, copy of which was received by her on 28.1.2005. Being aggrieved, the first respondent has filed the protest complaint before the court of C.J.M., Pathanamthitta on 23.2.2005. The reason for the delay stated in Annexure D petition was that she was laid up due to jaundice. Thereafter, the learned C.J.M., Pathanamthitta, recorded the sworn statement of the complainant and also examined one witness and took cognizance of the same, which is now pending before the Court of J.F.C.M.-II, Pathanamthitta as C.c.No.249/2005. According to the learned counsel, there are no sufficient grounds to invoke the jurisdiction of this Court as envisaged under Section 482 of Cr.P.C. which can be exercised with caution and only sparingly. 6. After hearing both counsel and on considering the points raised by both counsel, I find that there are disputes in the facts of the case which can be resorted to by the parties at the time of evidence in the concerned case. There is no bar in filing a protest complaint by an aggrieved person after receipt of a refer report in an earlier CRL.M.C.No.3077/05 -6- complaint. In the decision relied on by the learned counsel appearing for the petitioners in Kader v. State of Kerala (1999(3) KLT 262), this Court has held as follows: “8. ...................... What were the reasons for closing the investigation in Crime No.147/92 was hence a very important factor that should have entered the mind of the learned Magistrate before taking cognizance of the case. The inordinate delay between the date of taking cognizance and the date of occurrence is also a very important aspect which should have weighed against the acceptance of the complaint for further proceedings.” The facts of that case is not applicable to the instant case for the reason that there was inordinate delay of 7 years in the reported decision for taking cognizance of the case, which was taken as an important aspect which should have weighed against the acceptance of the complaint for further proceedings and for that reason direction was given to the learned Magistrate to pass fresh orders in the matter. In the present case, no such inordinate delay is there. The reason for the delay is seen explained by the first respondent in Annexure D, that she was laid up with jaundice. The Magistrate took cognizance of the case after taking the sworn statement and accepting the reason for CRL.M.C.No.3077/05 -7- the delay. Whether the allegations in Annexure D complaint are correct and whether any offence as alleged therein has been committed by petitioners 1 and 2, etc. are matters to be decided by the learned Magistrate on the basis of the evidence to be adduced by the prosecution. This Court by invoking the inherent jurisdiction under Section 482 of Cr.P.C. cannot verify at present whether there are any sufficient ground to attract the above said offences alleged against them. The learned Magistrate took cognizance of the case on the satisfaction that prima facie case is there to proceed against the petitioners. In these circumstances, I find that there is no ground to invoke the jurisdiction of this Court under Section 482 of Cr.P.C., which can be applied to meet the ends of justice and to prevent abuse of process of court. In the absence of any such ground, this petition is devoid of merits and it is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn