IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 Crl.MC.No. 4447 of 2005(A) --------------------------------- CC.1012/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... PETITIONERS : ----------------- 1. MATHEWS.C.MATHEW, S/O.MATHEW, RESIDING AT CHIRAYIL HOUSE, KALAVOOR.P.O, ALAPPUZHA. 2. ANIE MATHEW, W/O.MATHEW.C.MATHEW, RESIDING AT CHIRAYIL HOUSE, KALAVOOR.P.O., ALAPPUZHA. 3. BINDU MATHEW, D/O.MATHEW.C.MATHEW, RESIDING AT CHIRAYIL HOUSE, KALAVOOR.P.O, ALAPPUZHA. 4. BINU MATHEW, S/O.MATHEW.C.MATHEW, RESIDING AT CHIRAYIL HOUSE, KALAVOOR.P.O, ALAPPUZHA. BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, ALAPPUZHA SOUTH. 2. BANK OF INDIA, CCSB ROAD, ALAPPUZHA, REPRESENTED BY ITS MANAGER. PUBLIC PROSECUTOR MR.RAJENDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. -------------------------------- Crl.M.C. No.4447 OF 2005 -------------------------------- Dated this the 11th day of March, 2009 O R D E R The petitioners are accused nos. 2 to 5 in C.C.No.1012/04 on the file of the Judicial Magistrate of the First Class-I, Alapuzha. First accused is a partnership firm by name “Mathews C. Mathew and Son, Alapuzha” of which first petitioner is the Managing Partner and other petitioners are the partners. The partnership firm had financial transactions with the second respondent bank and had availed various loans, namely 'Export packing credit, foreign bills purchase, working capital demand loan-1 and working capital demand loan-2'. It was inter alia alleged by the second respondent that the loans were granted on hypothecation of the goods for which hypothecation agreements were executed and that the partnership firm had availed loan amounting to Rs.2,09,00,000/- and that the export packing credit facility was given for manufacturing, processing, purchasing or packing goods meant for exports against firm order or letter of credit and that the petitioners had a duty to keep the hypothecated Crl.M.C.No.4447 of 2005 2 goods in good and proper condition until the goods are exported and they are bound to produce the hypothecated goods for inspection by the staff of the second respondent and that on 28.01.2004, when called upon, petitioners failed to produce the hypothecated goods for inspection and that the petitioners acted in violation of their undertaking and converted the goods for their own use and purpose with the dishonest intention to cheat and defraud the second respondent and as a result, second respondent sustained loss to the tune of Rs.1,55,71,876/-. With these allegations, the second respondent preferred a complaint before the Judicial Magistrate of the First Class-I, Alappuzha. The learned Magistrate forwarded the complaint to the Sub Inspector of Police, Alappuzha South under Section 156(3) of the Code of Criminal Procedure. The Sub Inspector after investigation, filed Annexure A9 charge sheet against the firm and the petitioners herein for offence under Sections 406 and 34 I.P.C. 2. According to petitioners, they have not misappropriated any amount or committed any breach of trust and that the goods were exported and that because of the Crl.M.C.No.4447 of 2005 3 failure of the foreign buyers to pay for several consignments, petitioners failed to remit the amount and that would not amount to any offence much less any offence under Sections 406 read with 34 I.P.C. With these pleadings, seeking an order to quash Annexure A9 charge sheet in exercise of the powers conferred under Section 482 of the Code of Criminal Procedure, this petition was preferred. 3. The point that arises for consideration is:- Whether Annexure A9 charge sheet is liable to be quashed in exercise of the powers conferred under Section 482 of the Code of Criminal Procedure. 4. The point :- According to the learned counsel for the petitioners, there is no breach of trust and that failure to remit the amount occurred because of the default by foreign buyers to whom the goods were exported and that there was no appropriation of goods by the petitioners other than export and that even if petitioners appropriated the hypothecated goods or failed to remit the loan amount that would amount only for a civil cause of action and that none of the Crl.M.C.No.4447 of 2005 4 statements of the witnesses would disclose any entrustment of any hypothecated goods by the second respondent with the petitioners so as to commit the breach of trust. 5. According to learned Public Prosecutor, the offence alleged being under Sections 406 read with 34 I.P.C., the procedure prescribed under Chapter XIX of the Code of Criminal Procedure is to be adopted for the trial of the case against the petitioners and that in case no offence is made out, the petitioners can very well appraise the same before the trial court and to canvass for a discharge under Section 239 of the Code of Criminal Procedure. It was further argued that whether there was entrustment and breach of trust are matters to be brought in evidence and to see whether there are prima facie materials to send the petitioners for trial for the offences alleged, the statements of the witnesses and the documents produced by the prosecution had to be looked into and that now only some of the documents were produced by the petitioners. It was also argued that the documents relied upon by the petitioners regarding the cause for the non remittance of the loan amount are all matters to be considered Crl.M.C.No.4447 of 2005 5 by the trial court before proceeding with trial, provided those documents were produced by the petitioners. 6. Having gone through the materials available including Annexure A9 charge sheet and the arguments advanced, I find that the submission made by the learned Public Prosecutor has got much basis. To determine whether there are materials to send the petitioners and the first accused for trial for offence under Sections 406 read with 34 of I.P.C., the statement of the witnesses recorded and the documents produced by the prosecution are to be looked into. The statement of the witnesses relied upon by the prosecution are not seen produced. The prosecution had to comply with the procedures prescribed under Chapter XIX of the Code of Criminal Procedure for the trial of the case and before proceeding with the trial, it has to be looked into whether there are materials to send the accused for trial. In the event the prosecution could not satisfy that there are materials to proceed with the trial, the accused including petitioners can very well canvass for an order of discharge under Section 239 of the Code of Criminal Procedure. No such discharge is permissible in a Crl.M.C.No.4447 of 2005 6 petition under Section 482 of the Code of Criminal Procedure. I find that the proper course open to the petitioners is to approach the trial court with a request for discharge, in case there are no materials to send the petitioners for trial for the offence alleged. Point found accordingly. 7. In the result, this petition is dismissed. Petitioners are at liberty to urge their contentions before the trial court and to request for a discharge. 8. Learned counsel for petitioners submitted that second petitioner is a house wife and petitioners 3 and 4 are students and that their regular appearance before the trial court would hinder the education of the petitioners 3 and 4 and much inconvenience would be caused to the second petitioner. In the event petitioners had got any good reason for exemption from personal appearance, they are at liberty to apply before the trial court, which shall be disposed of by the learned Magistrate in accordance with law. P.S.GOPINATHAN, JUDGE pac