IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.MC.No. 3800 of 2010() ------------------------------------- C.C.NO.1272/08 OF JUDICIAL 1ST CLASS MAGISTRATE COURT-II, ALUVA -------------------------- PETITIONER(S): ACCUSED NOS.1 TO 4 -------------------------------------------------------- 1. THOMAS VARGHESE.K. S/O. K.K.VAREED, KACHAPPILLY HOUSE, CHERAI.P.O., NORTH PARAVUR. 2. K.R.ANURAJ S/O. K.V.RAJAN, KIZHAKKEVELIKKAKATH HOUSE, NAYARAMBALAM.P.O., ERNAKULAM. 3. M.S.BINOY, S/O. N.SREENIVASAN, MADATHIL HOUSE, MOOTHAKUNNAM.P.O, ERNAKULAM. 4. P.N.PRAKASAN, S/O. NARAYANA PILLAI, PERUMUKKATH VEEDU, THATTAMPADI.P.O., ERNAKULAM. BY ADV. SRI.P.K.SAJEEV RESPONDENT(S): COMPLAINANTS/STATE ------------------------------------------------------------- 1. MEENAKUMARI, W/O. K.K.BABU, KORASSERIL HOUSE, CHERAI.P.O., ERNAKULAM.683 514 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.3800 of 2010 --------------------------------------- Dated this 21st day of February, 2011 ORDER Petitioners are accused in C.C.No.1272 of 2008 of the court of learned Judicial First Class Magistrate-II, Aluva and seek to quash proceedings against them on the ground that no offence as alleged is made out even as per the allegations made in the complaint, final report and statement of witnesses. 2. Petitioners along with the first respondent, it is alleged are partners of a firm which availed loan of Rupees Five Lakhs from Federal Bank Limited undertaking to repay the amount with interest. According to the first respondent, on the assurance given by petitioners that liability will be discharged by them property belonging to himself, his mother and one Saradama was mortgaged to the bank. Later, petitioners are said to have misappropriated funds of the firm, refused to discharge the liability with intend to cheat first respondent and others and criminally intimidated the first respondent. Thus, it is alleged that offence under Secs.406, 420 and 506(ii) r/w Sec.34 of the Indian Penal Code are made out. The complaint was forwarded to the police for investigation. Police after investigation submitted Crl.M.C.No.3800 of 2010 -: 2 :- Annexure-A2, final report. Learned Magistrate took cognizance of the said offences in C.C.No.1272 of 2008. After hearing petitioners, charge has framed against them. Request is to quash proceedings against petitioners alleging that no offence is made out. 3. I have heard learned counsel for petitioners, first respondent and the learned Public Prosecutor. Learned counsel for petitioners relied on the decision in G.S Rajakumar Vs. Dr. Subramoniam Poti and Anr. (1979 CRI.L.J 738) to contend that in the absence of an averment in the complaint that by any special agreement the amount was entrusted to any of the partners in particular, no offence under Sec.406 of the Penal Code would stand. It is also pointed out by learned counsel for petitioners that as per statement of witness liability was to be discharged by all the partners. Learned counsel for first respondent submits that charge has been framed and it is not necessary to interfere with the proceedings at this stage and decide whether the allegations are correct or not. At any rate, offence under Sec.506(ii) of the Penal Code would stand. 4. I have been taken through the complaint and final report. Learned counsel has read the statements of witnesses Crl.M.C.No.3800 of 2010 -: 3 :- questioned by the investigating officer. The question whether there was any special entrustment of the funds with any of the petitioners so that, offence under sec.406 of the Penal Code is made out as contended is required to be agitated in the trial of the case. At any rate there is an allegation of criminal intimidation. Having regard to these aspects I am not persuaded to think that at this stage interference under Sec.482 of the Code of Criminal Procedure is required. The matter has to be thrashed out in evidence. Resultantly this petition is dismissed directing the learned Magistrate to dispose of the case untrammeled by any observation contained in this order. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge