IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 Crl.MC.No. 180 of 2011() ------------------------ CC.3486/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): ACCUSED 1, 2, 3 & 5: --------------------------------------------------------- 1. K.M.THOMAS, AGED 50 YEARS,S/O.K.T.MATHEW, MANAGING DIRECTOR, CARE & CONCERN AGENCIES AND SERVICES PVT.LTD, PIPELINE ROAD, PALARIVATTOM, KOCHI 25,NOW RESIDING AT 11/271, GANDHI NAGAR, GANGANA HALLY, THAREEKKARA TALUK, CHICMAGALORE, KARNATAKA STATE. 2. C.M.RAJAPPA, CHAIRMAN, PINNACLE EDUCTION TRUST, PINNACLE SCHOOL OF NURSING ALSO KNOWN AS PINNACLE INSTITUTE OF NURSING SCIENCES, NEELAGANGANILAYA, NAGADEVANA HALLY, BANGALORE-56. 3. ANURADHA RAO, CHAIRPERSON, ST.JOHN'S SCHOOL OF NURSING NO.4,PAPPAREDDY PALAYA,NAGARBHAI 2ND STREET, BANGALORE -72. 4. NOORULLA SHERIFF @ ORFANULLA SHERIFF, MANAGING DIRECTOR, HINA COLLEGE OF NURSING, IDEAL EDUCATION SOCIETY, NO.97, 1ST A MAIN, YELAHANGA, NEW TOWN, BANGALORE - 64. BY ADVS. SRI.ABRAHAM P.GEORGE, SRI.K.VINODKUMAR (707/89). RESPONDENT(S): COMPLAINANT/ACCUSED 4 & 6/DEFACTO COMPLAINANT: ----------------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI 682 031. Kss ..2/- ..2.... CRMC.NO.180/2011 2. SMT.NAGARATNAMMA, CHAIRPERSON, ACHARYA COLLEGE OF NURSING, NO.51,OPP.CLL LAYOUT, CHOLANAGAR, RT NAGAR POST, BANGALORE 560 032. 3. M.CHANDRAPPA, CHAIRMAN, SLV COLLEGE OF NURSING, NEAR CHALLAKERE TOLL GATE, NH A CIRCLE, CHITHRADURGA, PIN - 577 501. 4. JISHA, D/O.VARGHESE, CHERUVATHOOR HOUSE, PANNITHADAM ROAD, ATHIKKAVU, ANTHIYOOR, TRICHUR DISTRICT - 680 519. R1 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/02/2011 ALONG WITH CRMC NO. 210 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.180 and 210 of 2011 --------------------------------------- Dated this 09th day of February, 2011 ORDER Petitioners are accused in C.C.Nos.3486 of 2006 and 2867 of 2005 of the court of learned Judicial First Class Magistrate-I, Ernakulam. In the former case offences attributed against petitioners and others are punishable under Secs.406, 420 and 477 r/w. Sec.34 of the Indian Penal Code (for short, "the Code”) while in the latter, it is under Secs.406 and 420 r/w Sec.34 of the Code. First petitioner in both the cases is running an educational agency at Palarivattom under the name and style, “Care and Concern”. Petitioner Nos. 2 to 4 in Crl.M.C.No.180 of 2011 are the second, third and fifth accused in C.C.No.3486 of 2006 while respondent Nos.2 and 3 therein are accused Nos.4 and 6. In Crl.M.C.No.210 of 2011 arising from C.C.No.2867 of 2005 first petitioner as aforesaid is the first accused and second and third petitioner are the second and third accused. The case is that first petitioner in these cases offering to arrange admission for BSc Nursing and Nursing Diploma courses at Bangalore in institutions affiliated to and recognised by the University and run by petitioner Nos.2 and 4 and respondent Nos.2 and 3 in Crl.M.C.Nos.180 and 210 of 2011 -: 2 :- Crl.M.C.No.180 of 2011 and the third petitioner in Crl.M.C.No.210 of 2011 and promising that on admission necessary assistance will be made to obtain education loan for the courses, collected money from the de facto complainant and others but, failed to give admission to them in recognised and affiliated institutions or to arrange educational loan, the de facto complainant and others had to withdraw from the institutions from where they were given admissions but petitioners and others did not refund the money they had collected from the de facto complainant and others and thereby committed offences as alleged. Learned counsel for petitioners contend that it is incorrect to say that admission was given in unrecognised or non affiliated institutions. Learned counsel explains that so far as BSc Nursing course is concerned, the institutions are to get affiliation from the University while so far as Nursing Diploma course is concerned such institutions are to get recognition from the Karnataka Nursing Parishath (Board). Learned counsel has invited my attention to the documents produced along with these petitions to show that affiliation/recognition has been obtained for all institutions where BSc Nursing course was run by University concerned and for the Diploma course recognition has been obtained from the Karnataka Nursing Parishath (Board) as Crl.M.C.Nos.180 and 210 of 2011 -: 3 :- the case may be but, it is without reference to those documents that the investigating agency has submitted final report against petitioners and others. It is pointed out that it is not due to any fault on the part of petitioners that students did not get educational loan. That was on account of a misunderstanding or confusion bank authorities had on account of the basic qualification of the de facto complainant and others. Learned counsel submitted that so far as students from Kerala were concerned, a pass in the pre-degree for science group was essential while for students from elsewhere is concerned, a pass in any course in the pre-degree was sufficient. It is pointed out that when students were disgusted as they did not get educational loan they withdrew from the colleges or institutions and filed complaint based on which final report was filed. Learned counsel submitted that there are materials to show that petitioner and others had promised to give admission in recognised institutions but, it is given in unrecognised institutions but no money was returned not to say about arranging educational loan. 2. In respect of the third respondent in Crl.M.C.No.180 of 2011 this Court by order dated January 4, 2011 in Crl.M.C.Nos.180 and 210 of 2011 -: 4 :- Crl.M.C.No.4813 of 2010 had directed the investigating agency to conduct further investigation. That was because there appeared to be some confusion as to the alleged involvement of third respondent in the alleged incident. That situation does not arise in these petitions. Learned counsel made a fervent plea to quash proceedings against petitioners or to direct further investigation. I must bear in mind that final reports were filed as early as in 2005-2006, cognizance has been taken and learned Magistrate has taken the cases on file in 2005-2006. After about 5-6 years, I do not consider it necessary to quash proceedings or to order further investigation. Having regard to the facts and circumstances of the case, appropriate course open to the petitioner is to raise their plea/defence before the learned Magistrate at the appropriate stage be it under Sec.239 of the Code of Criminal Procedure (for short, "the Code”) or at the time of trial. 3. Learned counsel has submitted that since petitioners have not appeared in court coercive steps are pending against them. It is also requested that petitioners may be exempted from appearance in court since there is no dispute regarding identity and they may be permitted to appear through counsel. I leave that matter to be decided by the learned Magistrate having Crl.M.C.Nos.180 and 210 of 2011 -: 5 :- regard to the contention raised by petitioners that there is no dispute regarding identity and in the light of the decision of the Supreme Court in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (2000(8) SCC 740). In the circumstance, it is only appropriate that coercive steps against petitioners will stand in abeyance for a period of two months from this day. Resultantly these petitions are disposed of permitting petitioners to take up appropriate plea/defence in the trial court be it under Sec.239 of the Code or in the trial as law provides. Coercive steps against petitioners will stand in abeyance for a period of two months or till petitioners appear before the learned Magistrate seeking regular bail whichever is earlier. It is made clear that it is open to the petitioners to move appropriate application to withdrew the coercive steps against them and for grant of bail to them. Such applications if preferred shall be disposed of as early as possible having regard to the circumstances which I have stated above and also taking into account the fact that custody of petitioners may not be required since final report has already been filed. (THOMAS P JOSEPH, JUDGE) Sbna/-