IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Crl.MC.No. 2805 of 2005() ------------------------- CC.2199/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER/4TH ACCUSED ------------------------------ REETHA VARGHESE, W/O.V.J.VARGHESE, VETTAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, CHUTTUPADU KARA, EDAPPALLY.P.O., COCHIN-682 024. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S)/COMPLAINANT & STATE: ---------------------------------------------- 1. P.G.JAYAKUMAR, ASST. GENERAL MANAGER, COCHIN ZONE, THE DHANALAKSHMI BANK LTD., ALEX BUILDINGS, SHANMUGHAM ROAD, ERNAKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BAN FOR R1 PUBLIC PROSECUTOR SHRI C.M.NAZAR FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.10849/05 IN CRL.M.C.NO.2805/05 //DISMISSED// 6.2.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.2805 OF 2005 ----------------------------------------------------- DATED THIS THE 6TH DAY OF FEBRUARY , 2009 O R D E R The petitioner herein is the 4th accused in C.C.No.2199/98 pending before the Court of C.J.M., Ernakulam. The prayer in this petition is to quash Annexure A1 complaint and also all further proceedings against the petitioner including the proceedings under sections 82 and 83 of the Code of Criminal Procedure. 2. The first respondent herein is the complainant who has filed complaint Annexure A1 against accused 1 to 4 for the offences under sections 420 and 403 read with Sections 120B and 34 of IPC. The third accused is the husband of the 4th accused-the petitioner herein and second accused is the wife of the first accused. The complainant is the Assistant General Manager of Dhanalakshmi Bank Limited, Shanmugham Road, and the case alleged against accused 1 to 4 is that the first accused availed overdraft facility for Rs.10 lakhs from the Bank with accused 3 and 4 as guarantors. The OD facility was availed of by the first accused after mortgaging the property of 5.044 cents along with the residential building therein which belonged to the 3rd accused and the same was handed over CRL.M.C.No.2805/08 -2- to the Bank as security. Subsequently, the Bank has filed O.S.No.720/96 before the Second Additional Sub Court, Ernakulam against defendants 1 to 3 who are accused 1, 4 and 2 respectively in Annexure A1 complaint. That suit was decreed in part and suit against the petitioner was dismissed with cost to the second defendant, who is the petitioner herein. True copy of the decree in that suit is produced as Annexure A2. The judgment in that suit has not been produced. Annexure A3 is the receipt produced by the petitioner herein which was given by the first accused in the complaint to the 3rd accused, who is the husband of the petitioner herein acknowledging receipt of the document in respect of the property belonged to the 4th accused. The Bank has filed appeal before this Court, which is pending as A.S.No.196/99 against Annexure A2. 3. Heard the learned counsel appearing for the petitioner and the first respondent. Heard the learned Public Prosecutor also. 4. It is submitted by the learned counsel appearing for the petitioner that the civil suit filed against her by the complainant was dismissed with cost for the reason that the petitioner herein was at abroad and was working as nurse in Saudi Arabia. So, according to the learned counsel, the petitioner herein was not present at the time of execution of the mortgage deed and that she was at Saudi Arabia. CRL.M.C.No.2805/08 -3- 5. The submission made by the learned counsel for the petitioner has been opposed by the learned counsel appearing for the first respondent. According to the first respondent, the mortgage deed was executed in the presence of the petitioner as stated in paragraph 7 of the compliant, which reads as follows: 7.After scrutiny, accused Nos.1 and 3 approached the complainant for proceeding further for arranging overdraft facilities and A1, A2 and A4 executed the security documents (mortgage by title deeds) on 29.2.1996. A4 deposited her title deed of her property and signed the mortgage deed. Before the document was executed, A4 has produced the notarised affidavit asserting that the person who has signed the affidavit is Reetha Varghese, the wife of V.J.Varghese, 3rd accused residing at Vattaparambil House, Edappally P.O. This document was insisted because the complainant was not personally familiar with 3rd accused or his wife, the 4th accused. This document was handed over to the complainant by the third accused, her husband.” Therefore, the physical presence of the petitioner herein at the time of availing the overdraft facility by accused 1 and 2 was specifically mentioned. The husband of the petitioner herein is not a party in the civil CRL.M.C.No.2805/08 -4- suit is admitted by both sides. The husband has handed over the document to the first accused as revealed from Annexure A3. So, there was some role on the part of the 3rd accused in the overdraft facility availed of by accused 1 and 2. Proceedings are pending before the court of C.J.M., Ernakulam against accused 1 to 4 as C.C.No.2199/98. 82 and 83 proceedings are also pending against accused 3 and 4. In such circumstances, I find no reason to interfere with the proceedings now pending before the Court of C.J.M., Ernakulam by exercising the inherent jurisdiction of this Court envisaged under Section 482 of Cr.P.C. I find no merits in this petition and both parties can appear before the concerned court and can submit all their grievances before that court including the pendency of the appeal before this Court. With that observation, this Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn