IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 Crl.MC.No. 674 of 2011() ----------------------------------- CRL.RP.6/2009 of ADDL. SESSIONS COURT, THRISSUR CMP.10070/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER(S): /COMPLAINANT/ REVISION PETITIONER --------------------------------------------------------------------------------- P.D.RAPHAEL, PUDUSSERY HOUSE, CALVARY CORNER, POOTHOLE.P.O., THRISSUR DISTRICT, KERALA-680 004. BY SRI.P.D.RAPHAEL,PARTY-IN-PERSON RESPONDENT(S): STATE & ACCUSED 1 TO 4 ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KERALA-682 031. 2. FR.JEROME CHERUSSERY, FORMER MANAGER, DEVAMATHA CMI PUBLIC SCHOOL, PATTURAICKAL, THRISSUR, KERALA-682 022. 3. FR.SHAJU EDAMANA, PRINCIPAL, DEVAMATHA CMI PUBLIC SCHOOL, PATTURAICKAL, THRISSUR, KERALA-682 022. 4. MR.K.J.JACOB, FORMER ACCOUNTANT, DEVAMATHA CMI PUBLIC SCHOOL, PATTURAICKAL, THRISSUR, KERALA-682 022. (NOW RESIDING AT KOLLANNUR HOUSE, GOLDEN STREET, ELTHURUTH.P.O., THRISUR, KERALA-680 611. 5. MRS.PAUL ROSE, FORMER PRINCIPAL, DEVAMATHA CMI PUBLIC SCHOOL, PATTURAICKAL, THRISSUR, KERALA-682 022. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.674 of 2011 -------------------------------------- Dated this the 11th day of March, 2011. ORDER The party in person is before me challenging the order dated December 17, 2008 passed by learned Judicial First Class Magistrate-I, Thrissur on C.M.P.No.10070 of 2007 (a private complaint filed by him for offences punishable under Sections 405, 424 and 465 of the Indian Penal Code) and, as confirmed by learned Additional Sessions Judge-I, Thrissur by order dated December 14, 2010 in Crl.R.P.No.6 of 2009. 2. Allegation in short are: Petitioner was a Trained Graduate Teacher at Devamatha C.M.I. Public School, Thrissur. Respondent No.2 is its manager and respondent No.3, the principal. Respondents 4 and 5 are the accountant and former principal, respectively of the said institution. Petitioner was working in the said school since 17.06.2002. He states that the salary payable to the teachers was being deposited by the school authorities in the account of the teachers in the South Indian Bank, Viyyoor Branch and as instructed by respondents 2 to 5, petitioner and other teachers used to give signed blank cheques to the principal. Respondents 2 to 5 used to fill up the blank cheques for the entire amount of salary payable to the petitioner and other teachers, withdrew the entire amount from the respective account of the teachers including petitioner but, they were given only a pittance and the rest of the amount was being Crl.MC No.674/2011 2 misappropriated by respondents 2 to 5. Thus respondents 2 to 5 committed offences as alleged. Complaint was forwarded to the Police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). But the Police submitted a refer report stating that the allegations are false and that the complaint is preferred since petitioner got offended due to the school authorities refusing to give him an experience certificate. In view of the refer report petitioner filed C.M.P.No.10070 of 2007 on which the learned Magistrate took cognizance and conducted inquiry under Section 202 of the Code. The sworn statement of petitioner/complainant (Annexure-I) and a former teacher (Annexure-J) were recorded. Learned Magistrate dismissed the complaint under Section 203 of the Code and, the main reasons for dismissal are that petitioner has been giving signed blank cheques for several months without any whisper of an objection and that petitioner admittedly signed the acquittance register indicating that he has received the full salary, each month. Learned Magistrate was of the view that no prima facie case is made out and accordingly dismissed the complaint. That order is confirmed by the learned Additional Sessions Judge in revision. Petitioner argues that the view taken by the learned Magistrate and learned Additional Sessions Judge is not correct, there could be no plea of acquiescence against an offence and that the relevant extract from the account of petitioner with the South Indian Bank, Viyyoor Branch as also the various covers in which the salary of petitioner was being given to him each month were not properly considered by learned Magistrate. Further grievance of petitioner is that he was not given opportunity to summon the bank authorities to record their Crl.MC No.674/2011 3 statement. Petitioner in the circumstances requested that the matter may be remitted to the learned Magistrate for fresh disposal after further inquiry. It is also pointed out that in the circumstances, it was appropriate that learned Magistrate directed the Police to conduct an investigation (as referred to in Section 202 of the Code) and get the relevant documents examined in the Forensic Science Laboratory. A further argument that petitioner advanced is that even the contribution payable to the provident fund was not being properly and regularly remitted by the school authorities. I have heard learned Public Prosecutor also. Learned Public Prosecutor has invited my attention to Annexure-H, explanation submitted by the school authorities to the Assistant Provident Fund Commissioner, Kochi. 3. So far as the alleged withholding or non-payment of provident fund is concerned it is not necessary for me to go into that aspect since that is not part of Annexure-I, complaint. I therefore leave that matter there. 4. Now the question is whether learned Magistrate was correct in dismissing the complaint as if no prima facie case is made out against respondents 2 to 5. As I stated, two aspects which weighted learned Magistrate are that petitioner had given signed blank cheques for several months and he has signed acquittance register showing that he has received the entire salary. 5. Petitioner has invited my attention to Annexure-B, extract of account of petitioner with South Indian Bank (which according to the petitioner that account was opened at the instance of the school authorities). He pointed out that the actual salary payable to him was being deposited each month in the Crl.MC No.674/2011 4 said account by the school authorities which is more than `.6,000/-, each month. His case is that making use of signed blank cheques he had given, the school authorities were withdrawing the entire amount even including paise deposited each month . But, he was given only a small amount in a cover. Some of the deposits in his account are by way of cash deposit. But, I find from Annexure-B that there are atleast a few instances of deposit by transfer which petitioner says is from the account of the school. I find that there was deposit by transfer on 01.12.2005 ( `.6,043.00), 03.05.2006 ( `.6,227.00) and 03.08.2006 (`.6,371.00). Petitioner points out that as per Annexure-B, deposit of `.6,227.00 on 01.03.2006 was from the account of school authorities bearing No.53.3102. Petitioner has also invited my attention to Annexure-D series and in particular, Annexure-D(6) and D(9). Annexure-D(6) is the photocopy of a cover on which the name 'Raphel' is written and the amount written is `.3,781/-. In bracket it is written 'December, 2005'. Going by Annexure-B the amount deposited by transfer in the account of petitioner on 01.12.2005 is `.6,043.00. The other is Annexure-D(9), photocopy of a cover which also contains similar writings with the only difference that the amount mentioned is `.3,755/- and the month and year stated is March, 2006. Petitioner states that as per Annexure-B, the amount deposited by transfer from the account of school authorities to his account on 01.03.2006 is `.6,227.00 while, what was given to him as shown in the cover (Annexure-D(9)) for the month of March, 2006 is only `.3,755/-. It is also the contention of petitioner that a verification of the handwriting in the cheques by which various amounts were drawn from his account with the handwriting on the Crl.MC No.674/2011 5 cover (Annexure-D series) would show that it is of respondent No.4, the accountant of the school. It is seen from the order of the learned Magistrate that these aspects of the matter was not referred to. Nor did the learned Additional Sessions Judge consider these aspects. It is required to be inquired into whether the writings in the cheques by which amount was being withdrawn from the account of petitioner each month and the writings on the cover in which salary was allegedly being given to the petitioner each month are of same person and if so what is the inference that could be drawn. I am persuaded to think that further inquiry into the matter is required. 6. Under Section 202 of the Code the Magistrate is required to conduct an inquiry as provided therein and in the course of inquiry it is open to the learned Magistrate to direct an investigation to be made by a Police Officer or by such other person as the Magistrate thinks fit to decide whether or not there is sufficient ground to proceed in the matter. Both the alternatives are available to the Magistrate. (see Biju Purushothaman v. State of Kerala - 2008 (3) KLT 85). Examination of the disputed handwritings in the cheques by which the amounts were drawn from the account of petitioner and the handwriting on the various covers in which salary was allegedly being given to the petitioner by an expert may also become necessary. That exercise may not be undertaken by the court on its own. Instead, it is possible to direct the Police (notwithstanding the refer report filed on the earlier complaint) to investigate into that matter, as provided under Section 202(1) of the Code and submit a report in that regard. The Police could seize the relevant records, investigate into that matter, forward Crl.MC No.674/2011 6 the relevant records to the expert, get a report and submit the same to the court with its own report in the matter. I however leave it to the learned Magistrate to take appropriate decision in the matter as to in what form the inquiry under Section 202 of the Code has to be conducted. I also consider it appropriate to give petitioner opportunity to examine any other witness in the matter while the learned Magistrate is holding inquiry under Section 202 of the Code. Resultantly this petition is allowed. The order dated December 17, 2008 on C.M.P.No.10070 of 2007 of the court of learned Judicial First Class Magistrate-I, Thrissur and the order dated December 14, 2010 of learned Additional Sessions Judge-I, Thrissur in Crl.R.P.No.6 of 2009 are set aside. C.M.P.No.10070 of 2007 is remitted to the court of learned Judicial First Class Magistrate-I, Thrissur for further inquiry as provided under Section 202 of the Code and to pass appropriate orders after such inquiry, after giving petitioner opportunity to examine further witnesses if any. Petitioner shall appear in the trial court on 12.04.2011. THOMAS P.JOSEPH, Judge. cks