IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.MC.No. 1192 of 2010() ----------------------------------- CC.320/2005 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... PETITIONER(S): ACCUSED -------------------------------------- THOMAS MATHEW, AGED 66 YEARS, S/O. MATHEW, MAVELIL HOUSE, KAINIKKARI PANCHAYATH, WARD NO.7, ALAPPUZHA DISTRICT. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA RESPONDENT(S): COMPLAINANT & DEFACTO COMPLAINANT ----------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ATTUVATHALA SERVICE CO-OPERATIVE BANK LIMITED, NO.1541, KAINAKARY P.O., ALAPPUZHA-688 501, REPRESENTED BY ITS SECRETARY. R1 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD R2 BY ADVS. SRI.SUNIL J.CHAKKALACKAL, SRI.R.RAJENDRA PRASAD . THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/12/2010, ALONG WITH CRMC NO. 1202 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1192 &1202 OF 2010 =========================== Dated this the 2nd day of December,2010 ORDER Petitioner is the accused in C.C.320/2005 and 322/2005 on the file of Judicial First Class Magistrate Court, Ramankari taken cognizance for the offences under sections 406, 408, 409 and 477A of Indian Penal Code on Annexure 1 final reports respectively. Petitions are filed under section 482 of Code of Criminal Procedure contending that by Annexure II, petitioner was informed that Board of Directors passed a resolution based on a petition filed by the petitioner that as petitioner remitted the entire amount lost by the Bank there is no necessity to prosecute the case further. 2. Learned counsel appearing for the Crl.M.C.1192 & 1202 of 2010 2 petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel appearing for the petitioner is that as is clear from Annexure II, whatever loss was suffered by the Bank was paid by the petitioner and the bank has no subsisting grievance against the petitioner and therefore it is not in the interest of justice to continue the prosecution. Learned counsel relied on the decision of the Supreme Court in Nikhil Merchant v. Central Bureau of Investigation (2008 (3) KLT 769) and argued that when the final reports show that the bank sustained loss and the allegation is that petitioner did not account the entire amount paid by the respective debtors and misappropriated the same and subsequently petitioner paid the entire amount due to the bank, it is not in the interest of justice to continue the prosecution. Crl.M.C.1192 & 1202 of 2010 3 4. Though the Supreme Court in Madan Mohan Abbot v. State of Punjab (2008(3) KLT 19),B.S.Joshi and others v. State of Haryana and another (2003) 4 SCC 675) and Nikhil Merchant v. Central Bureau of Investigation (2008(3) KLT 769) held that technicalities shall not be allowed to stand in the way of the courts to quash criminal proceedings, though offences are not compoundable, when it is proved that the disputes between the parties were settled amicably, the principle cannot be extended to a case like the present one. Petitioner was Secretary of a Service Co-operative Society. The allegation against the petitioner is that in his capacity as the Secretary, when he received payments from the debtors who availed loan from the bank by pledging ornaments he did not show the payments correctly and misappropriated the money and thereby bank sustained loss. Question is whether such an offence could be said to be purely Crl.M.C.1192 & 1202 of 2010 4 personal in nature so as to exercise the inherent jurisdiction under section 482 of Code of Criminal Procedure. I cannot agree with the submission that based on the decision of the Board of Directors of the Society taking into consideration the payments subsequently made by the petitioner not to prosecute the case further, the cases pending are to be quashed as sought for. Petitions are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006