IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.MC.No. 173 of 2008() ------------------------------------- (C.C.NO.443 OF 2007 OF JUDICIAL FIRST CLASS MAGISTRATE,ADOOR) PETITIONER: ACCUSED NO.3: --------------------------------------------- K.P.RAVEENDRAN PILLAI, AGED 56, S/O.PADMANABHA KURUP, K.P.SADANAM, VINOBHAJI ROAD, PANNIVIZHA, ADOOR VILLAGE. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MUHAMMED SRI.DELVIN JACOB MATHEWS SRI.V.B.SUJEESH MENON SRI.JOEPH P.ALEX RESPONDENTS: COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IS IMPLEADED: R2. SOMANATHAN PILLAI, S/O.MADHAVAN PILLAI, 'JYOTHIS', PANNIVIZHA MURI, ADOOR VILLAGE IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT AS PER ORDER DTD. 12/03/2008 IN CRL.M.A.1288/2008 IN CRL.M.C.173/08. BY PUBLIC PROSECUTOR SRI. P.NANDAKUMAR -R1 ADV. SRI.P.VIJAYA BHANU FOR ADDL.R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON 07/10/2008 PASSED THE FOLLOWING: Kss P.N.Ravindran, J. ================ Crl.M.C.No.173 of 2008 ================== Dated this the 7th day of October, 2008. ORDER The third accused in C.C.No.443 of 2007 on the file of the Court of the Judicial Magistrate of First Class, Adoor has filed this Criminal Miscellaneous Case invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash Annexure F charge sheet laid by the Sub Inspector of Police, Adoor Police Station and all further proceedings pursuant thereto in C.C.No.443 of 2007, in so far as they relate to him. The additional second respondent is the defacto complainant in C.C.No.443 of 2007 above referred to. The brief facts necessary for the disposal of this Criminal Miscellaneous Case are as follows: 2. The defacto complainant in C.C.No.443 of 2007 is running a business under the name and style "Jyothis Finance" at Adoor. The first accused in C.C.No.443 of 2007 is employed as the Manager of the Adoor Co-operative Urban Bank. The third accused therein, the petitioner in this Criminal Miscellaneous Case is his brother. The second accused is the husband of the niece of A1 and A3. The second accused in C.C.No.443 of 2007 had on 25.8.2005 instituted a complaint, C.M.P.No.2807 of 2005 in the Court of the Judicial Magistrate of First Crl.M.C.No.173/08 -: 2 :- Class, Adoor against the second respondent herein, under Section 138 of the Negotiable Instruments Act, 1881. It is alleged therein that the second respondent who is distantly related to A2 and is running a business under the name and style "Jyothis Finance" at Adoor had borrowed a sum of Rs.18 lakhs from the second accused agreeing to repay the loan within 4 or 5 days, that on 9.7.2005 the second respondent had in repayment of the loan issued a cheque, No.360918 for Rs.18 lakhs drawn on the Adoor branch of the Catholic Syrian Bank to him, that when the said cheque was presented for payment it was dishonoured on 15.7.2005 for want of funds, that a notice dated 3.8.2005 was thereupon issued to the second respondent demanding repayment of the cheque amount, that the second respondent thereupon sent a reply dated 19.8.2005 setting out untenable contentions and refused to repay the cheque amount and that he has thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The second accused in C.C.No.443 of 2007 thereupon filed a private complaint on 25.8.2005 under Section 138 of the Negotiable Instruments Act, 1881 in the Court of the Judicial Magistrate of First Class, Adoor as C.M.P.No.2770 of 2005. Three days later, the second respondent herein (the defacto complainant in C.C.No.443 of 2007) filed the private complaint evidenced by Annexure A against one Sri.K.P.Sudhakaran Pillai and his niece's husband Sri.Viswamohanan Pillai, accused Nos. 1 and 2 respectively, in the Court of the Judicial Magistrate Crl.M.C.No.173/08 -: 3 :- of First Class, Adoor alleging that the first accused had cleverly obtained a blank cheque bearing his signature at a time when when there were financial transactions between him and the first accused, that disputes have arisen between them in relation to the said financial transactions, that the first accused has misused the said blank cheque and fraudulently converted it into a cheque purporting to be one issued by him in favour of the second accused, presented it for payment and when it was dishonoured issued a notice calling upon him to repay the cheque amount, that on receipt of the said notice when he made enquiries he came to know that the second accused is the husband of the niece of the first accused, that he has had no financial transaction with the second accused and that accused 1 and 2 have by their acts committed the offences punishable under Sections 463, 467 and 420 read with Section 34 I.P.C. The court below forwarded Annexure A complaint to the Sub Inspector of Police, Adoor Police Station for investigation under Section 156(3) of the Code of Criminal Procedure. Annexure A(1) F.I.R. was thereupon registered against Sri.K.P. Sudhakaran Pillai and Sri.Viswamohanan Pillai. After investigation, the Sub Inspector of Police, Adoor Police Station filed Annexure B final report stating that the dispute is of a civil nature and that in respect of the very same cheque, the second accused has filed a private complaint, C.M.P.No.2770 of 2005 under Section 138 of the Negotiable Instruments Act in the Court of the Judicial Magistrate of First Class, Adoor. Annexure B refer report was Crl.M.C.No.173/08 -: 4 :- filed on 20.11.2005. After the refer report was filed, the court below issued notice to the second respondent defacto complainant. After Annexure B final report was filed, the second respondent defacto complainant filed W.P.(C) No.32516 of 2005 in this Court wherein Annexure D judgment was passed on 19.12.2005 directing the Sub Inspector of Police, Adoor to finalise the investigation of Crime No.599 of 2005 of Adoor Police Station and to file the final report within two months from 19.12.2005. Annexure B final report had as a matter of fact been filed after investigation even before Annexure D judgment was passed. The second respondent thereafter filed Annexure C protest complaint on 10.3.2006. The second respondent defacto complainant also filed a petition under Section 173(8) of the Code of Criminal Procedure in the protest complaint relying on Annexure D judgment of this Court and prayed for a further investigation in the matter. By order passed on 13.9.2006, the court below directed the Sub Inspector of Police, Adoor to conduct a further investigation. Accused Nos. 1 and 2 unsuccessfully challenged the said order in this Court. The Sub Inspector of Police, Adoor thereafter conducted a further investigation and filed Annexure F charge sheet on 18.4.2007 implicating the petitioner herein as the third accused. The third accused in C.C.No.443 of 2007 on the file of the Court of the Judicial Magistrate of First Class, Adoor has in this Criminal Miscellaneous Case sought to quash Annexure F charge sheet and all further proceedings therein in so far they relate to him. Crl.M.C.No.173/08 -: 5 :- 3. I have heard Sri.R.Anil, the learned counsel appearing for the petitioner, Sri.Nandakumar, the learned Public Prosecutor appearing for the first respondent and Sri.P.Vijayabhanu, the learned counsel appearing for the second respondent defacto complainant. The learned counsel for the petitioner contended that there is no allegation against the third accused either in Annexure A complaint or in the reply notice dated 19.8.2005 issued by the defacto complainant to the second accused and that even in Annexure C protest complaint and in the application filed under Section 173(8) of the Act, there is no allegation against him and that only for the reason that he had lent and advanced money to the second accused, he has been implicated as the third accused. The learned counsel contended that the only allegation against the third accused is that he had advanced a sum of Rs.14,30,000/- to the second accused from the money lying in deposit in his account with the Adoor Branch of the Corporation Bank and that even if the entire allegations in Annexure F charge sheet are taken as correct, he cannot be held guilty of the offences punishable under Sections 465, 467 and 420 read with Sections 34 and 120(B) I.P.C. The learned counsel for the petitioner contended that the third accused has been unnecessarily implicated as an accused and that the proceedings against him is vexatious and an abuse of the process of the court. The learned counsel for the petitioner contended that even if the allegations levelled against the third accused in Annexure F charge sheet are taken as correct, they would not disclose Crl.M.C.No.173/08 -: 6 :- the essential ingredients of the offence punishable under Section 120(B) of the I.P.C. and that no overt act has been alleged against the third accused except transfer of money from the account maintained by him in the Adoor Branch of Corporation Bank to the second accused. The learned counsel contended that the evidence in the case would at best only show that the third accused had paid money to the second accused and that even if the entire allegations against him are taken as true, it would not lead to the conclusion that the third accused is guilty of criminal conspiracy or conspiracy to commit the offences alleged against accused Nos. 1 and 2. The learned counsel for the petitioner also referred to and relied on the decision of the Apex Court in Popular Muthiah v. State - (2006) 3 SCC (Cri.) 245 to contend that where the allegations in the F.I.R. or the complaint do not disclose the commission of any offence, this Court would be justified in exercising the inherent power under Section 482 of the Code of Criminal Procedure to quash the proceedings against the third accused. The learned counsel for the petitioner also referred to and relied on the decision of the Apex Court in K.R. Purushothaman v. State of Kerala - (2006) 1 SCC (Cri.) 686 to contend that an unlawful agreement is the sine qua non for constituting the offence of conspiracy and that while appreciating the evidence of conspiracy, it is incumbent on the court to keep in mind the well known rule governing appreciation of circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable Crl.M.C.No.173/08 -: 7 :- evidence and the circumstances proved must form a chain of events from which the irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis, is possible. It was argued that suspicion cannot take the place of legal proof and that every circumstance in the chain of events should be proved to bring home the charge. The learned counsel for the petitioner contended that in the instant case, even if the version given by CW5 is accepted in toto, it would have best show that from the account maintained by the third accused in the Adoor Branch of Corporation Bank, the sum of Rs.4,80,000/- was transferred to the account of the second accused in the very same branch on 8.7.2005 and that on 9.7.2005 a further sum of Rs.9,50,000/- was likewise transferred. The learned counsel for the petitioner contended that no one of the witnesses questioned by the Police including the defacto complainant has stated that the third accused had any role to play in the alleged fabrication of the cheque or its presentation for payment. 4. Per contra, Sri.P.Vijayabhanu, the learned counsel appearing for the second respondent defacto complainant contended that the existence of conspiracy and its objects can be deduced from the circumstances of the case and the conduct of the persons involved in the conspiracy. It was argued that it is not necessary that every one of the conspirators takes an active part in the commission of each and every conspiratorial act and that to constitute conspiracy, a meeting of minds Crl.M.C.No.173/08 -: 8 :- of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and that it is not necessary that all the conspirators must know each and every detail of the conspiracy. The learned counsel for the second respondent defacto complainant further contended that as the third accused had admittedly transferred money to the account of the second accused on 8.7.2005 and on 9.7.2005 and as the cheque involved in the private complaint filed by the second accused against the defacto complainant bears the date 9.7.2005 and was presented for payment on 15.7.2005, it is evident that the third accused was also a conspirator, who had acted hand in glove with first and second accused to make it appear that on the date on which the second accused is said to have advanced a loan of Rs.18 lakhs to the defacto complainant, the second accused had adequate funds at his disposal. The learned counsel for the second respondent defacto complainant contended that the alleged lending of Rs.18 lakhs to the defacto complainant was on 9.7.2005 and that prior to 5.7.2005 or after 9.7.2005, there was no transfer of money from the account of the third accused to the account of the second accused and this fact would make him a conspirator for the commission of the offences alleged against accused 1 and 2. The learned counsel for the second respondent defacto complainant further contended that transfer of money from the account of the third accused to the account of the second accused on 5.7.2005 and 9.7.2005 cannot be ignored and the said fact cannot also be proved Crl.M.C.No.173/08 -: 9 :- to be incorrect. The learned counsel contended that in that view of the matter, the third accused cannot contend that the evidence in the case would not establish his involvement in the conspiracy to commit the other offences alleged against accused 1 and 2 and that no grounds exist to quash the charge against the third accused. The learned counsel for the second respondent also submitted that the guilt or innocence of the third accused can be established only after trial and that it would not be proper for this Court at this stage of the proceedings to enquire into the question whether the third accused, the petitioner herein, had any role in the conspiracy and the alleged fabrication of the cheque. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The Apex Court has in K.R.Purushothaman v. State of Kerala - (2006) 1 SCC (Cri.) 686 held as follows: "13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primacy condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the Crl.M.C.No.173/08 -: 10 :- circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance proved must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement. 14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra, that: (SCC pp. 699-700, para 7) "In most cases proof of conspiracy is Crl.M.C.No.173/08 -: 11 :- largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material." 6. In State (NCT) of Delhi) v. Navjot Sandhu - 2005 SCC (Cri.) 1715, the Apex Court held that the non-participant conspirators cannot be found guilty of the substantive offence or offences not committed by them, but by other conspirators applying the principle of agency. It was held that criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle and that the theory of agency cannot be extended to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them. It was further held that those whose committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. 6. I have gone through the case diary and the statements made by the witnesses questioned by the Police including the defacto complainant. No one of the witnesses including the defacto complainant has spoken to any role played by the third accused in the alleged fabrication of the cheque. There is no allegation much less any proof Crl.M.C.No.173/08 -: 12 :- that the third accused had any role to play in the alleged fabrication of the cheque or its presentation for payment. The third accused is implicated on the short ground that from his account, money was transferred to the account of the second accused on two occasions. Though in Annexure F charge sheet it is alleged that accused 1 and 3 who are brothers conspired with the second accused, their near relation, to make it appear that the defacto complainant had issued a cheque for Rs.18 lakhs when he borrowed the sum of Rs.18 lakhs from the second accused, there is no material to substantiate the involvement of the third accused in that transaction. The third accused is implicated by merely alleging that he was a conspirator to the commission of the offences alleged against accused 1 and 2. As noticed earlier, even if it is proved that money had been transferred from the account of the third accused to the account of the second accused (the second accused is admittedly the husband of the niece of accused 1 and 3), that by itself would not lead to irresistible conclusion that he had conspired with accused 1 and 2 to fabricate the cheque (which had admittedly been issued by the defacto complainant to the first accused) by entering the name of the second accused therein and also the other details. It has come out in the investigation that the account maintained by the defacto complainant on which the cheque was drawn is a joint account standing in the name of the defacto complainant and his wife Smt.Sarojam. The version of the defacto complainant is that he had handed over the cheque in question Crl.M.C.No.173/08 -: 13 :- to the first accused earlier when there were financial transactions between them and that the said cheque was misused by the second accused to institute a private complaint against him. In my considered opinion, even if the case proceeds to trial, on the materials on record, it would not be possible to find the third accused guilty of having committed the offences punishable under Sections 465, 467 and 420 of the I.P.C. As noticed by me earlier, there is no overt act alleged against the third accused. There is no allegation that the third accused made a false document and thereby committed forgery. There is no allegation that he had fabricated the cheque in question. There is also no allegation that the third accused had dishonestly induced the defacto complainant to part with the cheque. From the materials on record, it is evident that the first accused and the defacto complainant are known to each other and admittedly there had been financial transactions between them. In Annexure A complaint, the defacto complainant has no case that the cheque was fabricated by or with the connivance of the third accused. In fact, the only allegation of the defacto complainant is that the first accused who had obtained a cheque in the year 1995 later gave to the second accused who presented it for payment, got it dishonoured and instituted a complaint against him. Even in the protest complaint, evidenced by Annexure C, there is no allegation against the third accused. No one of the witnesses questioned by the Police has spoken to any overt act played by the third accused in the commission of the Crl.M.C.No.173/08 -: 14 :- offences alleged against accused 1 and 2 relating to the cheque in question. In Annexure G application for further investigation filed by the defacto complainant under Section 173(8) also, the allegations are only against accused 1 and 2. In Annexure G it was also alleged that the source of the funds of the second accused had not been investigated into earlier. Even in that application, the defacto complainant did not have a case that the third accused was a conspirator. The endeavour of the defacto complainant was only to show that the second accused was not a man of means and did not have the necessary funds at his disposal to lend and advance the sum of Rs.18 lakhs to him as alleged on 9.7.2005. The question whether the second accused had necessary funds at his disposal and was in a position to lend money covered by the disputed cheque to the defacto complainant, becomes relevant only in the complaint filed by him against the defacto complainant. The evidence in the case on hand would at best only show that the petitioner herein had transferred money to the account of the second accused on two occasions. Even according to the defacto complainant, the second accused is the husband of the niece of accused 1 and 3. Therefore, the transfer of money by the third accused from his account to the account of the second accused cannot by itself is said to be suspicious or unnatural. Such transfer by itself does not constitute any offence under the Indian Penal Code. In my opinion, there is no material based on which it can be safely held that the third accused was involved in the Crl.M.C.No.173/08 -: 15 :- conspiracy with other accused persons to fabricate the cheque in question. There is no material even to show that the third accused was a non-participant conspirator. There is no charge against the third accused that he had in furtherance of a common intention and as a part of the conspiracy entered into between him and accused 1 and 2 transferred money from his account to the account of the second accused to make it appear that the second accused had sufficient funds at his disposal to be lend and advanced to the defacto complainant and in such conspiracy, accused 1 and 2 fabricated the cheque, presented it for