IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.MC.No. 3944 of 2006() CC.721/2003 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM PETITIONER: ACCUSED SUNNY THOMAS, S/O.THOMMAN, CHITOOKALAM, KUMARAKOM VILLAGE AND POST, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. P.S.SIBY, PARAYIL HOUSE, AMBIKA MARKET, VECHOOR POST, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.P.MADHAVANKUTTY FOR R1 PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.7072/2006 IN CRL.M.C.NO.3944/2006 DISMISSED Sd/- 13.8.2009 (C.T.RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 3944 OF 2006 -------------------------------------------- Dated this the 13th day of August, 2009 O R D E R The petitioner is the accused in C.C. No. 721 of 2003 on the file of the Judicial First Class Magistrate's Court, Vaikom. He is indicted therein under Sections 406 and 419 of the Indian Penal Code. The first respondent herein filed Annexure B complaint before the learned Magistrate, who took cognizance of the same, and referred the matter for investigation under Section 156(3) of the Code of Criminal Procedure. Annexure C is the final report filed before the trial court. The above Crl.M.C. is filed by the petitioner/accused with a prayer to quash Annexure C final report and the charge in C.C. No. 721 of 2003. 2. The gist of the complaint, as is obtained from Annexure B complaint, is as follows: The first respondent/complainant is a T.V. Mechanic. He was also conducting a cable net work. He had purchased the machinery for conducting the T.V. cable net work and the petitioner/accused was Crl.M.C. No. 3944/2006 2 engaged as an employee under him. He was entrusted with the duty of collection of monthly subscription from the subscribers. Subsequently, the petitioner/accused fraudulently obtained licence for conducting the cable net work. According to the first respondent, the petitioner had collected the monthly subscriptions from the subscribers and misappropriated the amount and when he demanded for return of the said amount, the petitioner filed O.S. No.422 of 2002 before the Sub Court, Kottayam. This is the sum and substance of the allegations raised in Annexure B complaint. 3. The petitioner/accused contends that it was only with a view to harass him that the first respondent/complainant instituted criminal proceedings against him. The dispute, according to him, is essentially civil in nature, and, therefore, institution and continuance of the criminal proceedings is nothing but an abuse of the process of the court. It is contended that it is obvious from Annexure B complaint itself that as of now, the licence to conduct the cable net work is with the petitioner/accused and the dispute regarding the same, viz., the right to run the cable net work is the subject matter in O.S. No.422 of 2002, which is now admittedly pending before the Sub Court, Kottayam. It is in the said circumstances, the petitioner/accused seeks interference by invoking Crl.M.C. No. 3944/2006 3 the power of this Court under Section 482 of the Code of Criminal Procedure. 4. I have heard Sri. P.Kuruvilla Jacob, learned counsel for the petitioner and Sri. M.P. Madhavankutty, learned counsel for the first respondent. I have also heard the learned Public Prosecutor. 5. Learned counsel for the petitioner cited several decisions. But, I am not adverting to those decisions, as I think those are not relevant for the purpose of deciding this case. Annexure B complaint would go to show that the dispute regarding the right to run the cable net work and allied matters are subject matters for adjudication before the competent civil court. When there was a threat to the right of the petitioner to run the cable net work, he approached the competent civil court. Indisputably, the subject matter of that proceedings and the one on hand are one and the same. Of course, certain allegations may constitute a civil offence as also a criminal offence. It is true that criminal and civil proceedings are not mutually exclusive. However, allegations, even though constitute an offence, if instituted with a mala fide intention or rests on adjudication of a civil dispute by the competent court, continuance of a criminal proceedings can only be nothing but an abuse of the process of the court. Crl.M.C. No. 3944/2006 4 The facts obtained in this case undoubtedly show that sustenance of the allegations rests on adjudication of a civil right and such rights can only be adjudicated by a competent civil court. Admittedly, the parties are already before the competent civil court. In such circumstances, I am of the opinion that continuance of the criminal proceedings against the petitioner is an abuse of the process of the court. Therefore, this is a fit case for invoking the inherent power under Section 482 of the Code of Criminal Procedure. In the result, Annexure C final report and the charge in C.C. No.721 of 2003 on the file of the Judicial First Class Magistrate's Court, Vaikom are quashed and the Crl.M.C. is allowed. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. No. 3944/2006 5 C.T. RAVIKUMAR, J. CRL. M.C. NO. 3944/2006 O R D E R 13th August, 2009 Crl.M.C. No. 3944/2006 6