IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 2939 of 2009() ------------------------------------ CC.751/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PUNALUR .................... PETITIONER/ACCUSED -------------------------------- BIJU, S/O. VARKEY, CHERAKUNNATHU VEEDU, MUDAVOOR KARA, VELLOORKONAM VILLAGE, MUVATTUPUZHA, ERNAKULAM DIST. PROPRIETOR/MANAGING DIRECTOR, BEN RUBBERS, RUBBER DEALER CHEENIKUZHI, MUVATTUPUZHA. BY ADV. MR.SUMAN CHAKRAVARTHY MR.K.A.JOSEPH RAJESH RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K. RAFEEK, S/O.V. KHASIM KUNJU, PARANKIMAVILA VEEDU, PALAMUKKU, EDAMULAKKAL VILLAGE, ANCHAL.P.O., KOLLAM DIST. PROPRIETOR, PARANKIMAVILA RUBBERS, PALAMUKKU, ANCHAL.P.O., KOLLAM DIST. R1 BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2939 OF 2009 =========================== Dated this the 2nd day of November,2009 ORDER Petitioner is the accused in C.C.751/2007 on the file of Judicial First Class Magistrate Court-I, Punalur taken cognizance for the offences under sections 420,406 and 409 of Indian Penal Code on Annexure A complaint filed by the second respondent. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A complaint and all proceedings taken before the learned Magistrate contending that the allegations do not disclose the ingredients of the offences and in such circumstances it is only an abuse of process of the court. 2. Though notice was served on second respondent, second respondent did not appear. 3. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner pointed out that before lodging Annexure A complaint, at the instance of second respondent Annexure B notice was sent claiming Rs.9,39,200/- and Annexure C reply Crl.M.C.2939/2009 2 was sent by the petitioner narrating the true facts and Annexure D ledger extract of the account from which cheques were issued shows that on 30.8.2006 Rs.9,35,593/- issued to the proprietory concern of the first respondent, was encashed and in such circumstances, the case is only to be quashed. 5. As per Annexure A complaint the proprietory concern of the second respondent used to supply rubber to M/s. Ben Rubbers and as per delivery note dated 25.8.2006 10,000 kgms of rubber sheets were sold for Rs.9,39,200/- and as per practice the price would be sent to the second respondent by cheque issued in the account of Kottarakkara Branch of South Indian Bank and on the assurance that it will be so sent the said rubber sheets were sold and by not paying the value of 10,000 kgms of rubber sheets by sending the amount to the account of the petitioner, second respondent misappropriated the amount and it was done with a dishonest intention to cheat and therefore offences under section 420, 406 and 409 of Indian Penal Code were committed. 6. It is clear that case of the second respondent is that Rs.9,39,200/- being the value of 10,000 kgms of rubber sheet sold on 25.8.2006 as per Bill No.64 was not paid and the amount was not sent to his account and petitioner thereby committed criminal breach of trust and also cheating. The allegation is that the value of the rubber Crl.M.C.2939/2009 3 sheets purchased by the petitioner from the proprietory concern of the second respondent was not paid. There is no allegation that on 25.8.2006, when the rubber sheets were purchased, there was a dishonest intention on the part of the petitioner to cheat the second respondent . At best it could be said that as promised petitioner did not pay the amount and the allegation is that failure was due to the dishonest intention to cheat. But when there is no case that the dishonest intention to cheat was there at the inception an offence under section 420 of Indian Penal Code is not attracted. 7. Annexure D statement issued from the South Indian Bank establish that after 25.8.2006, the date on which 10,000 kgms of rubber sheets worth Rs.9,39,200/- were sold by the second respondent, on 30.8.2006. Rs.9,35,593/- from the account of the petitioner was encashed by the proprietory concern of the second respondent. It establish that there was no criminal breach of trust as alleged. In such circumstances, continuation of the proceedings is only an abuse of process of the court which cannot be allowed to be continued. Petition is allowed. C.C.751/2007 on the file of Judicial First Class Magistrate Court is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.2939/2009 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006