IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 Crl.MC.No. 1086 of 2011() ---------------------------------------- (F.I.R.NO.497/11 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,ALUVA) .................. PETITIONER(S): 2ND ACCUSED: ------------------------------------------------ ANANTHESWARA KAMATH C., S/O.CHANDRA KAMATH, AGED 28 YEARS, ASSISTANT MANAGER (HOME LOAN COLLECTIONS), HSBC LTD, PULICKAL ESTATE, PALLIMUKKU, M.G.ROAD, ERNAKUAM, KOCHI-682 016. BY ADV. SRI.T.K.SAIDALIKUTTY RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682 031. 2. THE SUB INSPECTOR OF POLICE, ALUVA EAST POLICE STATION - 682 006. 3. CHETHANA BETSI, D/O.VIJAYAKUMAR, AGED 21 YEARS, CHIRAYIL HOUSE, KODIKUTHUMALA BHAGAM, NOCHIMAKARA, ALUVA EAST VILLAGE - 682 006. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1086 of 2011 -------------------------------------- Dated this the 7th day of April, 2011. ORDER Petitioner is the second accused in Crime No.497 of 2011 of Aluva East Police Station for offences punishable under Sections 451, 409, 354 and 323 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Petitioner is the Assistant Manager of a private bank. Case was registered against petitioner and others on a complaint filed by the daughter of one of the defaulters of that bank alleging that on 21.02.2011 at about 9 a.m. petitioner and other accused trespassed into the her house, the first accused told the defacto complainant that if they have no means to clear the loan, better, she went with him and using her, the first accused could (make money and) clear the liability, that petitioner/second accused pulled the churidar she was wearing and thus outraged her modesty and that third accused twisted her arm and assaulted her. She gave first information to the Police on 21.02.2011 at about 7.30 p.m. based on which the Aluva East Police registered Crime No.497 of 2011. Petitioner request to quash proceeding against him contending that allegations concerning him are false and that during the relevant time he was working in the bank as could be seen from Annexures-A3 and A4. It is pointed out by the learned counsel that at any rate no offence under Section 409 of the IPC is made out. I have heard learned Public Prosecutor also. Crl.MC No.1086/2011 2 2. Section 409 of the IPC deals with punishment for criminal breach of trust by public servant, banker, merchant or agent. I am unable to understand how Section 409 of the Code would apply when it is not disputed that even as per the allegations made by the defacto complainant, her father is a defaulter of the bank as amount was due from him to the bank of which petitioner is the Assistant Manager and there is no allegation of any breach of trust in Annexure- A1, first information statement. It is for the Investigating Officer to look into whether it is Section 409 of the IPC or, Section 509 of the IPC which is attracted in view of the allegations made by the defacto complainant in Annexure-A1, first information statement against the first accused. I also make it clear that it is open to the learned Magistrate or court concerned to look into that question notwithstanding the Section incorporated and ascertain what exactly is the offences allegedly involved (whether it is under Section 409 or 509 of the IPC). 3. So far as the request to quash proceeding against petitioner based on Annexures-A3 and A4 is concerned, that it is a matter which requires investigation whether information given by the defacto complainant about alleged involvement of petitioner is true or not having regard to the claim of petitioner that at the relevant time he was working in the bank. That being a defence available to petitioner, request to quash proceeding against him, in the light of information given by defacto complainant cannot be accepted. Crl.MC No.1086/2011 3 Subject to the observation made above, this Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks