IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 Crl.MC.No. 275 of 2007 CC.513/2006 of JFCM-VI, SPL.FIRST CLASS MAGISTRATE FOR THE TRIAL OF MARADU CASES, KOZHIKODE. . ................... PETITIONER: 1ST ACCUSED -------------------------- SHAJU M.,S/O.RAMAKRISHNAN NAIR, 29 YEAR OF AGE, RESIDING AT MANIYAEDATHU, THONDAYADN,NELLIKODU, KOZHIKODE. BY ADV. SRI.P.PAULOCHAN ANTONY SRI.MANUEL KACHIRAMATTAM RESPONDENTS/ COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, NADKKAVU POLICE STATION, KOZHIKODE. 3. A.K.PRASANTH, S/O.PRABHASANKAR A.K., USHAS HOUSE 4/451, A.G.ROAD, KOZHIKODE. R1 & R2 BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU SRI.T.R.RAVI FOR R3 SRI.P.S.MURALI FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-3-2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER No representation for the petitioner and respondent on 11-3- 2009. Today also when the case came up for hearing, no representation for the petitioner and 3rd respondent. Hence, the Crl.M.C.is dismissed for non- prosecution. Sd/-M.C. HARI RANI, JUDGE ORDER ON CRL.M.A. NO. 492/2007 DISMISSED Sd/-M.C. HARI RANI, JUDGE ks. TRUE COPY P.S. TO JUDGE K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 275 of 2007 ----------------------------------------------- Dated this 22nd September, 2009. JUDGMENT Petition filed too quash Annexure-C FIR and Annexure-D charge sheet as against the petitioner. 2. The prosecution case is as follows: On 10.2.2005, at about 20 hrs. de facto complainant (R3) stopped his car in front of the gate of Sree Narayana Education Institution and was about to open the gate, while accused nos. 1 to 4 came there and by putting him under fear, pushed him by force into the car and drove away the Qualis car bearing No.KL-11- Q-499. Later, the car was stopped at another place and 3rd respondent was sent out of the car. The car was thereafter driven away by accused nos. 1 to 4. Hence, all the accused have committed offence punishable under Section 392 IPC. 3. According to learned counsel for petitioner, petitioner is the Assistant Manager (Collection) of HDFC, Kozhikode. The vehicle involved in this case was hypothecated to the bank by the complainant by availing a [Crl.M.C.No.275/07] 2 loan. An agreement was also executed. As per the agreement, in the event of default, the Bank has every right to seize and recover the vehicle. Therefore, no offence is made out in this case, since Bank was only taking possession of the vehicle legally, as there was default on the part of the de facto complainant in repayment of the loan, it is submitted. 4. Learned Public Prosecutor argued that even though the bank has the right to re-possess the vehicle, it can only be done in a legal manner. No force is to be used in the course of re-possession. In this case, as per the allegations in the complainant, force was used against the complainant and he was also intimated and therefore, the charge cannot be quashed, it is argued. 5. Learned counsel for accused submitted that there is long delay in lodging the complaint. The incident allegedly took place on 10.2.2005 and the F.I.R. was registered only after 15 days of the incident. On 25.2.2005, a crime was registered against 12 persons. The petitioner is not actually involved in the crime and he was not even present at the scene at the time of occurrence, as alleged in the complaint [Crl.M.C.No.275/07] 3 and the petitioner is implicated only because he happened to be the Manager, it is submitted. The complaint is lodged against the petitioner with a view to harass the petitioner, it is submitted. 6. Learned counsel for the de facto complainant (R3) argued that there is no delay in lodging the complaint. On 12.2.2005 itself, a complaint was given by the complainant before the Nadakkavu Police Station, Kozhikode regarding the incident and the complaint was lodged under the impression that action would be taken against accused. But, it was only subsequently that he came to know that no action was taken in the matter and hence he had again lodged a complaint and the present crime was registered, it is submitted. There are allegations in the charge that petitioner along with other accused have committed robbery under Section 392 IPC. It is specifically stated therein that all the accused together threatened the complainant and pushed him into a car and drove away the car and on the way he was abandoned. Therefore, the involvement of the petitioner cannot be disputed, it is submitted. 7. On hearing both sides and on going through the [Crl.M.C.No.275/07] 4 documents produced and the complaint given on 12.2.2005 to the Sub Inspector, it can be seen that in the earliest complaint the complainant had not mentioned anything in respect of petitioner's presence at the scene. On the other hand, it is his case that the other accused called the petitioner over telephone, and the phone was handed over to the de facto complainant and the petitioner behaved in a very bad manner. This complaint was given on the second day of the incident on 12.2.2005. 8. But, much thereafter, on 25.5.2005, the complainant again gave another complaint and a crime was registered against 12 persons. There also, he had not mentioned about the petitioner. He gave an explanation for the delay stating that he had gone to Bangalore in connection with the business. According to the complainant, he made enquiries about accused involved and others. No explanation is given why no F.I.R. was registered on the basis of the complaint given on 12.2.2005 or what happened to the complaint. 9. There is no explanation why petitioner is now implicated as one of the accused who appears to be not even present at the scene. It appears that petitioner was [Crl.M.C.No.275/07] 5 brought into the array of accused at a subsequent stage, much after the incident and even after lodging of the second complaint. The only offence alleged is under Section 392 IPC and the ingredients of the offence have to be established. It appears from the first complaint and second complaint that petitioner was not even present at the scene. In such circumstances, I find that it will be an abuse of process of court to continue prosecution against petitioner, especially in the light of sufficient improvements made in the case, at different stages. In the result, Annexure-D charge sheet laid against petitioner and further proceedings pursuant to Annexure-D are quashed, in so far as it relates to petitioner only. Petition is allowed. K. HEMA, JUDGE. krs.