IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Crl.MC.No. 1883 of 2006() ------------------------- CC.970/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... PETITIONER(S): ACCUSED NO.2 --------------------------- GEORGE M.THOMAS @ BINU, AGED 39, S/O.ROY.G.THOMAS, MODAYIL KAVIL HOUSE, NEAR Y.M.C.A., MALLAPPALLY VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.JOSEPH GEORGE RESPONDENT(S): STATE &DEFACTO COMPLAINANT ----------------------------------------- 1. STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, PULIKEEZHU POLICE STATION, PATHANMTHITTA DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEWS.M.CHERIYAN,MUTTASSERIL HOUSE, KADAPRA, NIRANAM,PATHANAMTHITTA DISTRICT. ADV.SRI.B.JAYASURYA FOR R1 ADV. SRI.SATHISH NINAN FOR R2 SRI.SANTHOSH MATHEW FOR R.2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.1883 of 2006 ----------------------------------- Dated this the 17th day of February, 2010 ORDER Petition is filed to quash Annexure-B charge. Petitioner is the second accused in C.C.970 of 2003 before the Judicial First Class Magistrate Court for the offences under Section 420 read with Section 34 of I.P.C. 2. According to prosecution, the defacto complainant was deceived by accused Nos.1 and 2 by making false representation regarding sale of plot and they also received money on several occasions from the defacto complainant, with dishonest intention to make wrongful gain to the accused and wrongful loss to the defacto complainant etc. 3. Learned counsel appearing for the petitioner submitted that second accused is only a paid employee working under first accused, who was running an institution which is engaged in sale of plots. Petitioner was only acting under the instructions of first accused but he had no intention to cheat the defacto complainant. He had not persuaded the defacto complainant and he had not shared any common intention to deceive defacto complainant. The allegations will only constitute civil liability, Crl.M.C.No.1883 of 2006 2 since it appears that the accused had acted in violation of the terms of the agreement, is submitted. According to petitioner, case records will not reveal that the second accused had any mens rea to constitute an offence under Section 420 IPC. It is also submitted that the prosecution has also no case whether the first and second accused have any relationship between each other so as to develop a common intention to commit any crime. The only relationship is that of an employer and employee. Petitioner has already left the company, it is submitted. 4. The learned counsel for the second respondent submitted that the complaint itself reveals bare sketch of allegations made to constitute the offence under Section 420 and also the common intention to commit cheating. From the specific allegations regarding the misrepresentation made and the deceit played on the defacto complainant etc., and other allegations made in case diary offence under Section 420 and 34 IPC is clearly made out. 5. On hearing both sides I find that there is a serious dispute regarding questions of facts. Only if such questions are resolved the court can decide whether offence under Section 420 is committed or there was any common intention for both Crl.M.C.No.1883 of 2006 3 accused to commit cheating. But the whole records are not before this court to verify whether the allegations made against would constitute the offences alleged. In such circumstances, I cannot also appreciate the contentions raised on disputed facts for want of records. Petitioner is at liberty to put forward all his contentions before trial court and apply for discharge, in which event, trial court shall consider the matter and dispose of the same in accordance with law. 6. Learned counsel for the petitioner submitted that the petitioner is working abroad and he may be exempted from personal appearance. If a petition is filed to that effect learned Magistrate will take into consideration his request and pass such orders as he may think fit and proper. Petition is disposed of accordingly. K.Hema, Judge cms