IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.MC.No. 8 of 2008(A) --------------------------------- (CRIME NO. 1182/2007 OF ANGAMALY POLICE STATION) ............ PETITIONER/ ACCUSED: ----------------------------------- P.O.VARGHESE ,S/O. OUSEPH PARAPILLY HOUSE, MATTUR, KALADY, ERNAKULAM DISTRICT. BY ADV. MR.M.P.ASHOK KUMAR. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. INDIAN OIL CORPORATION LIMITED COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPALLY NAGAR, COCHIN- 682 036, REP. BY ITS CHIEF DIVISIONAL RETAIL SALES MANAGER. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR, R2 BY ADV. MR.BABU CHERUKARA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.8 of 2008 -------------------------- ORDER Petitioner is the eighth accused in Crime No. 1182/2007 of Angamaly Police Station, registered for the offence under Section 406 read with Section 34 of Indian Penal Code, as against eight accused, under Annexure-A8 FIR. Annexure-A8 FIR was registered based on a complaint filed by the second respondent, Indian Oil Corporation, as against the accused alleging that second respondent, through its dealer M/s. T.A.Aliyarkunju, was operating a Petrol/Diesel Bunk at Angamaly and the said outlet was commissioned in 1972 and was in operation till the death of Aliyarkunju and on a routine inspection by the Field Officer, it was found that the petrol storage tanks, dispensing pumps of different makings, pipelines and other fixtures and fittings worth Rs.41,33,800/- were removed. Second respondent sought to investigate the case, to recover the various items owned by them and to get compensation from the accused for the loss sustained and to punish the culprits, who deliberately committed the crime. CRMC 8/08 2 First accused is the widow and accused 2 to 5 are the other legal heirs of deceased Aliyarkunju. Accused 6 and 7 are the original owners of the property and petitioner/8th accused is the subsequent assignee from accused 6 and 7. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case contending that the case as against the petitioner is only an abuse of process of the court and as there is no case that any article of the second respondent was entrusted with the petitioner, an offence under Section 406 of Indian Penal Code is not attracted and therefore, the case is to be quashed. 2. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner pointed out that the property where the second respondent had installed the Petrol/Diesel Bunk, originally belonged to accused 6 and 7 and deceased Aliyarkunju obtained a lease of the site and the lessee Aliyarkunju thereafter entered into an agreement with Indian Oil Corporation, based on which, the Petrol/ Diesel Bunk was installed and Aliyarkunju died in 2002 CRMC 8/08 3 and his legal heirs did not continue the dealership and petitioner purchased the property from the original owners, accused 6 and 7, in 2004 and as there is no case that petitioner was entrusted with the articles, an offence under Section 406 of Indian Penal Code is not attracted as against the petitioner and therefore, the case is to be quashed. 4. Learned counsel appearing for the second respondent submitted that after petitioner purchased jenm right of the property from accused 6 and 7, he had sent Annexure-A4 letter to the second respondent to remove all the articles and later, under Annexure-A10, the Sub Inspector was informed that the articles will be removed by the petitioner and in such circumstances, petitioner is also liable and therefore, the case cannot be quashed as sought for. 5. Learned Public Prosecutor submitted that even though second respondent was directed to produce the materials to proceed with the investigation, materials were not furnished and therefore, the case could not be properly investigated. 6. An offence under Section 406 of Indian Penal Code as against the petitioner cannot be attracted, if CRMC 8/08 4 there is no entrustment of the articles with him. There is no case for the second respondent that the articles, which were allegedly removed from the property, were entrusted to the petitioner at any point of time, so as to commit breach of trust. On the other hand, it is the case of the second respondent that entrustment was to Aliyarkunju, who was conducting the Petrol/Diesel Bunk at that place. It is also admitted that Aliyarkunju died in 2002 and accused 1 to 5 are his legal heirs. The complaint filed before the police, based on which the case was registered, does not contain any allegation that there was a conspiracy by the other accused with the petitioner and pursuant to the conspiracy, the articles were removed. On the other hand, after alleging that the articles were entrusted with Aliyarkunju and later the articles were removed, names of the eight accused are shown. There is no specific allegation as against the petitioner, either that there was an entrustment or that there was subsequent dishonest removal or destruction of the articles so entrusted. There is no case that the articles originally entrusted with Aliyarkunju, were entrusted on behalf of the second respondent, to CRMC 8/08 5 accused 6 and 7, from whom, petitioner purchased the property. In the absence of any such allegation, no offence under Section 406 of Indian Penal Code can be attracted as against the petitioner. In the absence of a case that there was a common intention by the petitioner along with the legal heirs of Aliyarkunju, even by invoking Section 34 of Indian Penal Code, petitioner cannot be proceeded against. Therefore, on the face of it, continuation of the prosecution as against the petitioner is an abuse of process of the court and Crime No.1182/2007 of Angamaly Police Station, registered as against the petitioner/8th accused, can only be quashed. But, if, after investigation, any other offence is made out as against the petitioner, this order will not stand in the way of proceeding against the petitioner. Petition is allowed. Crime No.1182/2007 of Angamaly Police Station as against the petitioner is quashed. 18th September, 2009 (M.Sasidharan Nambiar, Judge) tkv