IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.MC.No. 2448 of 2006() ------------------------- CC.388/2004 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANOOR PETITIONER: 2ND ACCUSED IN CR.212/2002 OF ETTUMANOOR POLICE STATION T.K. KOYA, AGED 52 YEARS, S/O. KAREEM, RESIDING AT SEALAND VEETTIL, ARAVUKAD DESOM, PARAVUR VILLAGE, PUNNAPRA, ALAPPUZHA. BY ADV. SRI.K.A.JALEEL SRI.N.K.POULOSEKUTTY SRI.A.MOHAMMED SAVAD RESPONDENTS: COMPLAINANTS: 1. STATE OF KERALA (REP. BY ASST.COMMISSIONER OF POLICE, CRIME DETACHMENT, COCHIN CITY-CR.212/2002 OF ETTUMANOOR POLICE STATION) REPRESENTED BY THE STATE PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. HARIKUMAR @ OMANAKUTTAN, S/O. KRISHNAN NAIR, VALLATHARAKKAL VEETTIL KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, ETTUMANOOR. BY ADV. SMT.S.K.DEVI FOR R2 SMT.P.K.MAYA DEVI FOR R2 PUBLIC PROSECUTOR SRI.JAYASURYA B. SRI.C.A.CHACKO FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4467/06 IN CRL.M.C.NO.2448/06 DISMISSED 14.8.09. Sd/- (C.T.RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO.2448 OF 2006 -------------------------------------------- Dated this the 14th day of August, 2009 O R D E R Petitioner is the second accused in C.C.No.388/04 on the file of the Judicial First Class Magistrate Court, Ettumanoor. Along with the first accused therein he is facing indictment under Section 420 read with 34 of the I.P.C. Annexure-B complaint was filed by the defacto complainant/second respondent herein, before that court and it was forwarded for investigation under Section 156(3) of the Code of Criminal Procedure. Crime No.212/02 of Ettumanoor Police Station was consequently registered and thereafter the investigation was handed over to the Crime Detachment, Cochin City. During such investigation it was revealed that the petitioner had also a role in the commission of the alleged crime and accordingly he was also joined as an accused and Annexure-C Final Report was submitted before the Judicial First Class Magistrate Court, Ettumanoor. As per Annexure-C final report on 25.4.2002, the petitioner and the first accused in C.C.No.388/04 had approached the second respondent herein and demanded Rs.40,000/- promising to supply fish for the said amount. They came to him in a Maruti Omni Van bearing Registration No.KL-4/J-2588 owned by CW 4 and the petitioner herein and the first accused made the Crl.M.C.No.2448 of 2006 2 second respondent believe that the said van belongs to them and handed over to him the said van and also some blank cheques as security. By making such fraudulent and dishonest promise and assurance they induced him to deliver Rs.40,000/- and 36 fish boxes worth Rs.450/- each. This is the sum and substance of the allegations incorporated in Annexure-C charge sheet. The above Crl.M.C has been filed by the petitioner therein with the prayer to quash Annexure-C police charge sheet, in C.C.No.388/04 on the file of the Judicial First Class Magistrate Court, Ettumanoor. 2. The main contention of the petitioner is that he was not arrayed as an accused either in Annexure-A F.I.R or in Annexure-B private complaint. According to him, he was implicated as an accused on account of grave misunderstanding by the police without any proper investigation. Fraudulent intention at inception cannot be inferred from the allegations incorporated in Annexure-C as against him. It is contended that even if the allegations incorporated in Annexure-C charge sheet are taken as true and correct in their entirety, they will constitute only a civil wrong and not a criminal offence as alleged by the second respondent. 3. With respect to the first contention, there cannot be any doubt that the mere absence of name in F.I.R or in a complaint cannot divest the Crl.M.C.No.2448 of 2006 3 power of the investigating officer to join another person also in the array of accused if such person is found to have played a role in the commission of offence, during investigation. F.I.R only sets criminal law in motion and thereby requiring the investigating agency to take steps and make efforts for investigating the alleged crime. Therefore, non-mentioning of one's name as accused in the complaint or in the F.I.R would not be of any consequence if the circumstances of the case justified the same and also his/her inclusion as accused thereafter. It, by itself, cannot be ground for rejecting the prosecution case. The allegations incorporated Annexure-C charge sheet prima facie suggests that the petitioner had played a role in the commission of the offence. Therefore, I cannot uphold the contention of petitioner that Annexure-C charge is liable to be interfered with for the simple reason that his name did not appear in Annexure-A and Annexure-B. 4. As regards the second contention of the petitioner relating the absence of ingredients to constitute the offence under Section 420 of the I.P.C it is to be noticed that Annexure-C carries accusation of deception preceeding fraudulent inducement. When once Annexure-C discloses an offence, as alleged, the inherent jurisdiction cannot be invoked. So also this Court cannot embark upon an enquiry as to the veracity or adequacy of the supporting materials. The mere fact a civil remedy may also lie on the same Crl.M.C.No.2448 of 2006 4 set of allegations cannot be a reason for invoking the inherent jurisdiction in the facts and circumstances obtained in this case. 5. The end product of these elaborate discussions is essentially declination to exercise the inherent jurisdiction under Section 482 of the Code of Criminal Procedure. Accordingly, this Crl.M.C is dismissed. (C.T. RAVIKUMAR, JUDGE) spc