IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.MC.No. 42 of 2009(E) ----------------------- C.C. NO.551/ 2008 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER/ ACCUSED NO.4: ------------------------------------------- SUBHASH, S/O.SREEDHARAN UNNI,PRASHANTHI HOUSE, KALLUMALAMANKUZHI, NEAR KANNATTUMUDI MARKET, AKKANADU KARA, THAZHAKKARA VILLAGE, MAVELIKKARA. BY ADVS. MR.RAJA VIJAYARAGHAVAN, MR.R.RANJITH RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2. M/S. KOTAK MAHINDRA PRIMUS LTD., ERNAKULAM BRANCH, REPRESENTED BY ITS COLLECTION HEAD AND AUTHORIZED SIGNATORY DHIRENDRA S.M, 4TH FLOOR, THADIKKARAN CENTRE, PALARIVATTOM, KOCHI-25. *IS IMPLEADED AS ADDL. R2 AS PER ORDER DTD. 08/01/2009 IN CRL.M.A. NO. 72/09 IN CRL.M.C. NO. 42/09. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/05/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 42 of 2009 ================== Dated this the 23rd day of May, 2009. O R D E R The petitioner is the sole accused in C.C. No.551/2008. He was originally the 4th accused in C.C. No.800/2002 on the file of Judicial Magistrate Court-II, Aluva. As presence of petitioner could not be procured at the time of trial in C.C.No.800/2008, evidence was recorded as against accused 1 and 2 and case against the petitioner was refiled as C.C.No.551/2008. Under Annexure 4 judgment on evidence of PWs 1 to 4 and Exts.P1 to P5, Judicial First Class Magistrate Court acquitted accused 1 to 3 under Section 248(1), Code of Criminal Procedure finding them not quilty of the offences. 2. Prosecution case was that in furtherance of the common intention of the accused, they conspired together to cheat 2nd respondent, who was impleaded Crl.M.C.No.42/2009 2 in this petition. Subsequently, the 1st accused availed a loan of Rs.2,99,000/- for purchasing a Car on hire purchase with accused 2 and 3 as guarantors. Hire purchase agreement was executed on 22-1-2000. On its strength loan was advanced. 2nd respondent lodged Annexure 1 complaint before Judicial Magistrate Court-II, Aluva contending that pursuant to the conspiracy, the vehicle was obtained in the name of 4th accused and before the R.T.O. Mavelikkara while registering the vehicle, hypothecation particulars were not disclosed and the amount due to 2nd respondent was not paid and all the accused committed offences under Section 406, 418, 420, 120B, 193, 198 and 200 r/w Section 34, I.P.C. Learned Magistrate under Section 156(3) of Code of Criminal Procedure directed investigation. Annexure 2 F.I.R. was prepared and the case was registered. After investigation, Annexure 3 final report was filed, Crl.M.C.No.42/2009 3 based on which C.C.No.800/2002 was taken cognizance. 3. As is evident from Annexure 4 judgment, learned Magistrate on the evidence found accused 1 to 3 not guilty of the offences of criminal conspiracy under Section 120B as well as offences under Section 406, 418 and 420 of I.P.C. Since the petitioner was not available for trial, the case as against him was split up and refiled. The question is whether in such circumstances and materials, it is necessary to undergo the ordeal of trial. 4. When the case of criminal conspiracy stands rejected by Annexure 4 judgment, petitioner cannot be convicted based on the criminal conspiracy. There is no case for the prosecution that petitioner had either approached 2nd respondent or availed loan. In such circumstances, petitioner cannot be roped in with the aid of Section 120B of Indian Penal Code. As Crl.M.C.No.42/2009 4 the alleged criminal conspiracy stands disproved, no purpose will be served by recording the evidence as against petitioner. It would only be waste of valuable time of the Court, which could be used for better purpose. Under such circumstances, petition is allowed. C.C.No. 551/2008 and the proceedings initiated against the petitioner pursuant to Annexure 3 final report is quashed. M.SASIDHARAN NAMBIAR JUDGE dkr