IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.MC.No. 601 of 2008() ---------------------------------- CRIME NO.66 OF 2004 OF CENTRAL POLICE STATION, ERNAKULAM. .................. PETITIONERS/ACCUSED NOS.5-8: ------------------------------------------------ 1. ANNIE JOHN, W/O.JOHN KURIEN, AGED 56 YEARS, PERIYAPURATHU VEEDU, KALANIMATTOM KARA, ELANJI VILLAGE. 2. ANNIE JASEENTHA PRINCE, D/O.POULOSE ASTHAPHAN, AGED 28 YEARS, ELAVUTHINGAL VEEDU, B-104, VARGE VIHAR, SECTOR 16, IROLY, MUMBAI. 3. LUCY POULOSE, W/O.POULOSE ESTHAPHAN, ELAVUTHINGAL VEEDU, B-104, VARGE VIHAR, SECTOR 16, IROLY, MUMBAI. 4. PRISOLY JOHN, D/O.JOHN KURIEN, AGED 27 YEARS, PERIYAPURATHU VEEDU, KALANIMATTOM KARA, ELANJI VILLAGE. BY ADV. MR.S.RAJEEV RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.66/04 OF CENTRAL POLICE STATION, ERNAKULAM). * ADDL. R2 IMPLEADED ADDL. R2: MR.SANTHOSH THOMAS, S/O.O.J. THOMAS, OLASSA DALE, VYTTILA, ERNAKULAM. * IMPLEADED AS ADDL. R2, VIDE ORDER DATED 10/06/2008 IN CRL.MA.2972/2008 IN CRL.MC.NO.601/2008. R1 BY PUBLIC PROSECUTOR MR.SALIM ADDL. R2 BY ADV. MR.VIVEK VARGHESE P.J, MR.P.J.VINOD JOSEPH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 601 of 2008 ORDER ON CRL.MA.NO.815/2008 IN CRL.MC.NO.601/2008 DISMISSED 30/11/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 601 OF 2008 =========================== Dated this the 30th day of November,2009 ORDER Petitioners are respectively accused 5, 3,7 and 8 in C.C. No.1909/2004 on the file of Judicial First Class Magistrate Court-II, Kochi taken cognizance for the offence under section 420 read with section 34 of Indian Penal Code on Annexure I final report. Second respondent is the de facto complainant. Based on the First Information Statement of the second respondent recorded by Assistant Sub Inspector of Police, Ernakulam, Crime 66/2004 was registered and after investigation Annexure I final report was filed alleging that eight accused committed offence under section 420 read with section 34 of Indian Penal Code. This petition is filed under section 482 of Code of Criminal Procedure to quash the case as against the petitioners contending that continuation of proceedings as against them is only an abuse of process of court, as on the final report there is no specific allegation against the petitioners. It is contended that even if petitioners are to be tried in the absence of any Crl.M.C.601/2008 2 material against them, there is no likelihood of a conviction and hence the case is to be quashed. 2. Learned counsel appearing for the petitioners, second respondent and public prosecutor were heard. 3. Annexure I final report shows that the prosecution case as against the eight accused is that first accused had given advertisement in Mathrubhoomi and Malayala Manorama Dailies to the effect that he is the Manager of Locko polo Technologies Ltd a multi national Company and second accused is the legal advisor and on attractive basis dealers are to be appointed and the Company is registered under the Indian companies Act in the name Locko Polo Technologies Ltd at Navi Mumbai and an office is started at M.G. Road near Kavitha theatre in the building Cc 40/7021 and appointed staff and also appointed dealers at various companies of the State and first accused received Rs.5 lakhs as stock deposit from the dealers and entered into an agreement with the second respondent and inspite of the agreement they did not supply the articles and thereby caused a loss of Rs.7.75 lakhs to the second respondent and committed an offence under section 420 of Indian Penal Code. 4. Learned counsel appearing for the petitioners argued that apart from the allegation that all the accused have a common intention to commit the offence, there is no Crl.M.C.601/2008 3 other allegation as against the petitioners and hence continuation of the proceedings against them is only an abuse of process of the court. 5. Learned counsel appearing for the second respondent argued that the second petitioner is actually the third accused and not fifth accused as shown in the petition and she is also one of the Directors of the Company and a civil suit was filed by the second respondent before Sub Court, Ernakulam as O.S.140/2004 and the suit is decreed as against accused 1,3,4 and 6 who are the Directors of the Company, apart from the Company and in such circumstance the case cannot be quashed. 6. The final report does not show that petitioners are either Directors of the Company or as Directors they were responsible for the business and management of the affairs of the Company. On the other hand, the allegation in Annexure A final report is that first accused gave advertisement and the second accused was the legal advisor and they formed a Company and received advance amount to appoint dealers and to supply materials. It is also alleged that inspite of representation and undertaking materials as promised were not supplied. The final report also shows that no witness is cited to prove who are all the Directors of the Company or the Directors of the Crl.M.C.601/2008 4 Company are personally liable for the criminal action. In the absence of any allegation as against the petitioners, even if petitioners are to be tried, there is no chance of a successful prosecution. When there was mensrea therein and when there is no case that with a dishonest intention petitioners induced the second respondent to part with money and in the absence of a case that they had a dishonest intention to cheat the second respondent, there cannot be a successful prosecution as against the petitioners. In such circumstances, continuation of the proceedings as against the petitioners is only an abuse of process of the court. Petition is allowed. C.C.1909/2004 on the file of Judicial First Class Magistrate Court-II, Kochi as against the petitioners who are accused 5, 3, 7 and 8 is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006