IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.MC.No. 2750 of 2007() ------------------------- SC.140/2007 of SESSIONS COURT, ALAPPUZHA .................... PETITIONER(S): 2ND ACCUSED -------------------------- P.N. PADMAKUMAR, S/O.NATARAJA PILLAI, AGED 39, THAMARAKKULAM HOUSE, AROOR P.O., CHERTHALA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GIRISH KUMAR, S/O.NEELAKANDAN, NEDIYADIYIL HOUSE, VADAYAR P.O., VAIKOM. (KANNAMPARAMBIL HOUSE, THALYAZHAM P.O., VAIKOM). PUBLIC PROSECUTOR (SMT. REKHA) SRI.S.KRISHNAMOORTHY FOR R.2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09 /2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl.M.C. No. 2750 of 2007 --------------------------------------------------- Dated this 18th September, 2009. ORDER This petition is filed to set aside Annexure-A6 complaint and all other proceedings in SC No.140/2007 initiated against petitioner. 2. Petitioner is the second accused in Annexure A6 complaint filed by second respondent. According to complainant, accused 1 and 2 being not members of this Scheduled Caste or Scheduled Tribe have committed various offences under Sections 3(1) (viii), 3(2)(ii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 read with Sections 211, 120(B) and 34 of Indian Penal Code against complainant, who is a member of the Scheduled Caste. 3. It is alleged in the complaint that second accused (petitioner)and complainant were having some difference of opinion in connection with a construction work entrusted to the second accused who is a contractor and the payment. The complainant had issued a cheque for Rs.50,000/- in connection with the said transaction and thereafter issued a stop memo. Because of this, petitioner threatened the complainant saying that he will not allow petitioner to go to Africa etc. The complainant was studying for M.B.A. since 2003 in Africa. His [Crl.M.C.No.2750/07] 2 father is also residing there and his mother is working as a teacher. 4. Due to previous enmity of petitioner towards complainant, with intention to obstruct his studies and spoil his future, petitioner in furtherance of common intention with the first accused (who is not even known to the complainant), lodged an absolutely false complaint against the complainant alleging offence under Section 420 IPC in respect of an alleged Visa transaction and it was taken on file as C.C.No.569 of 2004. An affidavit was also filed by complainant to obtain a warrant and complainant was caused to be arrested and produced in court. He was forced to surrender his passport. In such circumstances, though complainant had a return ticket, he had to postpone his journey. 5. The first accused is not even known to the complainant. He also does not know even his place of residence. There is no transaction between the complainant and first accused so far. The complainant had not promised to anybody to arrange Visa but false allegations are made in C.C.No.569/2004 only with an intention to deliberately harass the complainant and to cause obstruction to his studies. First accused, as abetted by petitioner, filed the said complaint against the complainant. However, the case being a false one, the complainant was discharged in the said case. While the said case was pending, petitioner also filed false complainants [Crl.M.C.No.2750/07] 3 against complainant's father. A suit was filed for settlement of account and it is pending. 6. A complaint was filed before the police in respect of such acts committed by both the accused, but the said complaint was referred by police as false under the influence of the accused. It is the case of the complainant that C.C.No.569 of 2004 was taken on file on the basis of a complaint given by the first accused under the instigation of petitioner. The accused have thereby allegedly committed various offences under Sections 3(1)(viii), 3(2)(ii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 read with Section 211, 120(B) and 34 of Indian Penal Code, is the allegation. 7. Learned counsel for petitioner submitted that the words which are allegedly uttered by petitioner, which will attract offence under Sections 3(1)(viii), 3(2)(ii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 are absent in the complaint and also that the said offences will not lie against the petitioner, since the petitioner is not the person who lodged complaint under Section 420 IPC against the complainant. Admittedly, it was the first accused who lodged the complaint and if the complainant suffered any loss due to such filing, petitioner cannot be made liable for such act, it is contended. The petitioner, in fact, was forced to file civil cases against the complainant's father because of the acts committed by [Crl.M.C.No.2750/07] 4 complainant and his father and those are pending. 8. As per the allegations in the complaint, it was the first accused who filed the false complaint against the complainant. But, he is not even known to petitioner, it is submitted. Petitioner has absolutely no involvement in filing the complaint against the respondent and hence he cannot be made liable for any such offence, it is argued. It cannot be said that petitioner gave false evidence or fabricated false evidence against complainant intending to cause the complainant to be convicted and therefore offence under Sections 3(2) (ii) is not attracted and this complaint is filed against petitioner only due to enmity, since civil case was instituted by the petitioner, it is submitted. It is also submitted that a refer report was filed in a complaint filed by petitioner against respondent and the report is Annexure-A4 and the said report shows that the allegations made in the complaint are false. It is stated therein that this case is an offshoot of a civil dispute between the parties. Therefore, there is absolutely no ground to proceed with the present complaint and it may be quashed, it is submitted. 9. On hearing both sides and on going through the available documents, I find that there are are allegations in the complaint to the effect that an absolutely false complaint was made against complainant by first accused and it was caused to be filed by [Crl.M.C.No.2750/07] 5 petitioner, knowing there was no just ground for doing so. It was under petitioner's instigation that the complaint was filed by first accused, who is not even known to the complainant. It is also alleged that the complainant was subjected to lot of harassment and he had even suffered huge monitory loss and he was caused to be arrested on the basis of the false complaint which is caused to be filed under instigation of petitioner with intention to secure conviction by filing false complaint etc. 10. The offences alleged include the offence under Section 211 of IPC and, according to complainant, all the offences are committed against complainant by both the accused in furtherance of common intention. Section 211 of IPC lays down that if a person with intent to cause injury to any person institutes or caused to be instituted any criminal proceeding against that person is liable for punishment. As per the allegation, petitioner caused the first accused to institute a complaint against the complainant alleging offence under Section 420 IPC with intent to cause injury to complainant and such complaint is absolutely false. This was allegedly done with the knowledge that there is no just or lawful ground for such proceeding as disclosed from the complaint. 11. On a reading of the complaint, I do not think that any interference is called for. There are sufficient ground to proceed [Crl.M.C.No.2750/07] 6 against petitioner and I am not satisfied that this is a fit case to quash the complaint. There are allegations in the complaint which may constitute offence. It is well-settled that even the absence of one or two ingredients in complaint may not be a ground to quash the complaint. However, I make it clear that petitioner is at liberty to move the trial court for discharge, if he is so advised and if any such petition is filed, it shall be disposed of by the trial court untrammelled by the observations, if any, made in this order on the merits of the case. (This is for the reason that consideration for discharge and quashing complaint are different). Petition is dismissed. K. HEMA, JUDGE. Krs.