IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.MC.No. 4450 of 2005() ------------------------- CC.342/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... PETITIONER(S): 2ND ACCUSED: --------------------------- V. VETHAGOPAL, S/O. VELUCHAMI GOUNDER IRUTHIYENPATHI, CHITTOOR. BY ADVS. SRI.P.K.ASHOKAN SRI.RENJITH B.MARAR SMT.DHANYA P.ASHOKAN RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAJAGOPAL, S/O. BALASWAMI THEVAR, ERUTHIYENPATHI, CHITTOOR. ADVS. SRI.SAJAN VARGHEESE K. FOR R2 SRI.LIJU. M.P FOR R2 SRI.M.V.BIPIN FOR R2 PUBLIC PROSECUTOR SRI AMJATH ALI FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON 19.2.2009 PASSED THE FOLLOWING: ORDER IN CRL. M.A. NO. 15907 OF 2005 IN CRL.M.C. NO. 4450 OF 2005. DISMISSED 19.2.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 4450 OF 2005 -------------------------------------------- Dated this the 19th day of February, 2009 O R D E R The second accused in C.C. No. 342 of 2005 on the file of the Judicial First Class Magistrate's Court, Chittoor is the petitioner herein. He has approached this Court with a prayer to quash Annexure-3 final report on the assumption that he is facing indictment only under Section 418 of the Indian Penal Code. 2. The petitioner was the President of Eruthiyenpathy Co-operative Milks Supply Society Ltd. No.P.566, Chittoor from 30.4.1999 to 24.11.2002. According to him, dissatisfied with the functioning of the Society, he resigned from the post with effect from 25.11.2002. Subsequently, the second respondent filed Annexure 1 private complaint before the Judicial First Class Magistrate's Court, Chittoor alleging commission of offences punishable under Sections 405, 406, 408, 407 and 477A read with Section 34 I.P.C. against himself, the Secretary of the Society and 13 others who are the then Director Board Members of the Crl.M.C. No.4450/2005 2 Society. The learned Magistrate forwarded the same to the Sub Inspector of Police, Kozhinjanpara under Section 156(3) Cr.P.C. for investigation. Crime No.194 of 2004 was subsequently registered against all the said accused by the Sub Inspector of Police, Kozhinjanpara. Pursuant to the investigation conducted by the Circle Inspector of Police, Kozhinjanpara in respect of the said crime, he filed Annexure 3 final report under Section 173 Cr.P.C. before the trial court. It is with the prayer to quash Annexure- 3 that the petitioner has approached this Court by filing the above Crl. M.C. 3. The petitioner contended that pursuant to the investigation conducted based on the direction issued on Annexure 1 private complant, all the Director Board Members of the Society, except himself and the Secretary, were omitted from the array of accused, as is obvious from the final report. It is his further contention that out of the 15 witnesses examined, witness Nos.10 and 11 are departmental officers, 12 and 13 are mahazar witnesses and 14 and 15 are investigating officers and that the statements of witness Nos. 1 to 9 recorded under Section 161Cr.P.C. did not contain anything against him. His further contention is that going by Annexure 3 final report, he is exonerated from the alleged commission of offences under Sections 405, 406, 408, 409 and 477 A I.P.C. and he has Crl.M.C. No.4450/2005 3 now been roped in for commission of offence under Section 418 I.P.C. According to the petitioner, there was no allegation against him of having committed the offence under Section 418 I.P.C. either in Annexure-1 private complaint or in Annexure-2 F.I.R. In short, even if the allegations levelled against him are taken in its entirety as correct, it would not constitute an offence under Section 418 I.P.C., the petitioner contends. It is based on the above contentions that the petitioner has sought to quash Annexure 3 final report. 4. As stated stated earlier, a mere perusal of the contentions of the petitioner in this Crl.M.C. would reveal that he is under the belief that the allegation against him is only for the commission of offence punishable under Section 418 I.P.C. The counsel for the second respondent as also the Public Prosecutor brought my attention to Annexure-2 F.I.R. and Annexure-3 final report and contended that the contention of the petitioner that he is charged only under Section 418 I.P.C. is not true to the facts. In fact it is obvious from Annexure 3 final report itself that Section 418 I.P.C. is added in addition to the offences punishable under Sections 405, 406, 408, 409 and 477 A I.P.C. To bring home the point that the allegations set out in Annexure- 1 private complaint and Annexure 3 final report do not constitute an offence under Section 418 I.P.C., the petitioner has relied on Crl.M.C. No.4450/2005 4 the decisions of the Honourable Apex Court reported in Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 S.C.C. 168 and Jose V.Y. v. State of Gujarat, 2009(1) K.L.D. 280. However, I think I need not advert to the above decisions for the purpose of deciding this Crl. M.C. for the simple reason that those decisions were sought to be relied on to bring home the point that the charge under Section 418 I.P.C. will not lie against the petitioner based on the allegations set out therein as the essential ingredients to constitute the said offence are lacking. As pointed out earlier, the allegations against the petitioner is not confined only to the commission of offence under Section 418 I.P.C. He is charged under Sections 405, 406, 408, 409 and 477 A I.P.C. also. Obviously there is nothing in this Crl. M.C. challenging the continuance of the proceedings against the petitioner in respect of the allegation of commission of offences under the other sections viz. Sections 405, 406, 408, 409 and 477 A I.P.C. Suffice it to say that, in the circumstances, it will be a futile exercise to endeavour to find whether the essential ingredients of Section 418 I.P.C. is made out against the petitioner or not as, even a finding in his favour on that count would not be sufficient to hold that the continuance of the proceedings against him would be an abuse of the process of the Court. However, the observations made above shall not foreclose the right of the petitioner for raising the plea of Crl.M.C. No.4450/2005 5 discharge before the trial court at the appropriate stage. 5. In these circumstances, I am of the opinion that this is not a fit case where the inherent power under Section 482 Cr.P.C. is to be invoked for an abrupt termination of the proceedings against the petitioner. In the result, the Crl.M.C. is dismissed. But, as stated earlier, this order will not prejudice the right of the petitioner to make a plea of discharge before the trial court at the appropriate stage. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. No.4450/2005 6 C.T. RAVIKUMAR, J. CRL.M.C. NO. 4450/2005 O R D E R 19th February, 2009 Crl.M.C. No.4450/2005 7