IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Crl.MC.No. 3228 of 2005() ------------------------- CC.616/2004 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA PETITIONER: ACCUSED ---------------------------------- M.VELAYUDHAN, S/O.KUNCHOKU, AGED 72 YEARS, R/O. DOOR NO.14-A,(NEW NO.27), WHITES ROAD, CHENNAI-600014, TAMIL NADU. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHIN-682 031. 2. K.P.SHAMEER, S/O.VASUDEVAN, AGED 36 YEARS, ADVOCATE, R/O.KOLLAMPADIKKAL HOUSE, P.O.VATTOLI, KAKKATTIL, VADAGARA TALUK. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED SRI.MOHANAN V.T.K. FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. GIRI, J. ----------------------------------------------- Criminal M.C. No.3228 OF 2005 (C) ----------------------------------------------- Dated this the 28th day of August, 2008 O R D E R The accused in C.C.616/2004 on the files of Judicial First Class Magistrate Court, Vadakara is the petitioner in this petition under Section 482 of Cr.P.C. The first accused/petitioner seeks to quash the proceedings in C.C.616/2004. 2. Annexure B is the complaint leading to C.C.616/2004. A perusal of the complaint shows that the case of the complainant, broadly, was that she had joined as a subscriber in a chit conducted by M/s.Sudarsan Chits (India) Limited. The fourth accused was the Branch Manager of the said company at Vadakara. The fourth accused approached the complainant at her house. Her husband was also present at that time in their house. The complainant agreed to join the chit. Accordingly, the complainant became a subscriber of the Crl.M.C. No.3228/2005 - 2 - chit. Instalments were remitted. The tenure of the chit was later completed and the complainant made demand to the second respondent for the sala amount. This was not given. Thereafter, complainant made several requests. 3. The accused 2 and 3 had, on several occasions, agreed to pay the amount; but that was not done. In so far as the first accused is concerned, the specific allegation seems to be that the second accused had told the complainant that accused 1 and 3 had sanctioned the payment due to the complainant, the first accused had been intimated about this and the first accused had apparently sanctioned the amount to the second accused for onward payment to the complainant. The complaint does not contain any specific allegation that the first accused had, at any point of time, specifically agreed to pay the amount to the complainant at the time of joining the chit. Apparently, the first accused seems to have been arrayed as an accused on the premise that he was the Managing Director of the company, which had conducted the chit. Crl.M.C. No.3228/2005 - 3 - 4. In this application under Section 482 of Cr.P.C., two grounds have been essentially taken up in seeking to quash the proceedings in the court below, so far as the first accused is concerned. Firstly, it is contended that the first accused was not the Managing Director of the Company at the relevant point of time. Reference is made to Annexure C, which seems to be the list of Directors from 1999 onwards. Secondly, it is contended that a reading of the entire complaint will not reveal any allegations against the first accused making out an offence under Section 420 of the Indial Penal Code. 5. I heard learned Senior counsel Sri.K.P.Dandapani appearing on behalf of the petitioner. There is no appearance on behalf of the complainant. 6. I have gone through Annexure B complaint. In so far as the contention that the first accused has nothing to do with the chit company is concerned, I am of the view that it may not be possible, under Section Crl.M.C. No.3228/2005 - 4 - 482 of Cr.P.C. to decide the said aspect. But in so far as the second contention is concerned, I find force in the submission made by Mr.Dandapani that there is no allegation in the complaint, which will specifically make out a case against the first accused under Section 420 of the Indian Penal Code. Mere non-payment or delay in the payment of amounts payable to the subscriber of a chit by the foreman will not constitute an offence under Section 420 of Indian Penal Code. The offence punishable under Section 420 would be made out, if there are allegations and prima facie material to show that the subscriber/complainant was compelled to join the chit on a false promise, and that the complainant would not have joined the chit, but for the said promise. It is also necessary to allege that the complainant had suffered detriment or wrongful loss on account of the false promise made by the accused. 7. The allegation broadly answering the above description, seems to be made in the complaint against the fourth accused. At any rate, there is no Crl.M.C. No.3228/2005 - 5 - allegation, whatsoever, of the above nature which would satisfy the ingredients of Section 420 of the Indian Penal Code, as regards the first accused. Apparently, the complainant has unnecessarily dragged the first accused into the proceedings, without identifying the person who is responsible for the chit company possibly for the purpose of a more expeditious settlement of her claim. But it will not satisfy the requirements in the court. 8. I am satisfied that it would be abuse of process of the Court, if the criminal proceedings is continued, in so far as the first accused is concerned. 9. Mr. Dandapani submits that, as a matter of fact, payments which are due to the complainant and other aggrieved subscribers have been made and is being made on a pari passu basis. He submits that the Supreme Court appointed Mr.Justice Thulasidas (a former Judge of this Court) as Additional Director of the company and due payments have been made to the complainant Crl.M.C. No.3228/2005 - 6 - through the office of Mr.Justice Thulasidas. Recently, she has accepted the same. I would have gone into more details of this matter, had there been a representation on behalf of the complainant. But I take note of the fact that there is no representation on behalf of the complainant and accept this as probabilising the case of the accused in this regard. For all these reasons, the Criminal M.C. is allowed. The proceedings in C.C.611/2004 on the files of the Judicial First Class Magistrate, Vadakara are quashed, in so far as the first accused is concerned. Sd/- V. GIRI, JUDGE skr // True copy // P.A. to Judge. Crl.M.C. No.3228/2005 7 Figure “C.C 611/2004” occuring in the 2nd line of the last paragraph of the order dated 28/08/2008 in Crl.M.C No.3228/2005 is corrected as “C.C.No 616/2004” vide order dated 05/02/2009 in Crl. M.A No 592/2009 in Crl.M.C No. 3228/2005. Registrar (Judicial)