IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 Crl.MC.No. 1227 of 2010() ------------------------------ CC.385/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR (L.P.C.NO.107/2009) .................... PETITIONER(S): ACCUSED: ------------------------------- A.T.MATHEW, S/O.THOMAS, AGED 55 YEARS, (OF AREECKAL HOUSE, IDAVARAMBU P.O., CHERUPUZHA, KANNUR) NOW RESIDING AT PALA ESTATE, VENGALAPPARA, ARIVILAMCHAL P.O., SANTHANPARA, IDUKKI DISTRICT. BY ADVS. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE SRI.S.MANU RESPONDENT(S): STATE: ----------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE PRESIDENT, THE PADIYOTCHAL SERVICE CO-OPERATIVE BANK LTD. NO.C-1519, P.O.PADIYOTCHAL, KANNUR DISTRICT, KERALA. 3. K.KUNHIKRISHNAN NAIR, S/O.KRISHNAN NAIR, KANJIRANGATAN, CHERUPUZHA P.O., KANNUR DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM R2 BY ADV.SRI.T.K.VIPINDAS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO.1227 OF 2010 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER,2010 ORDER Petitioners, the accused in C.C.385 of 2007 on the file of Judicial First Class Magistrate Court, Payyannur, now pending as LPC 107 of 2009, filed this petition under Section 482 of Code of Criminal Procedure to quash the proceedings contending that Padiyotchal Service Co-operative Bank where petitioner was working as a Manager did not sustain any loss as is clear from Annexure II communication and in such circumstances, it is not in the interest of justice to continue the prosecution. It is contended that when disputes were settled amicably with respondents 2 and 3, the then President and the present President of the Co-operative Bank, as held by the Apex Court in Madan Mohan Abbot V. State of Pubjab (2008(2) KHC 589), it is not in the interest of justice to continue prosecution. 2. Second respondent, the present President of the Bank appeared through a counsel and submitted that Bank has received the entire amount as stated in Annexure II and no amount is due from the CRMC 1227/2010 2 petitioner. Learned senior counsel appearing for the petitioner, learned counsel for the second respondent and learned Public Prosecutor were heard. 3. Annexure II communication sent by the Bank to the C.I of Police, Payyannur shows that while petitioner was working as the main Branch Manager of the Padiyotchal, omissions were found in the bank account and therefore a complaint was filed against the petitioner on 25.10.2005. Subsequently on 27.2.2005, he came back to the bank and settled the account. It was informed that for some reason without closing the account, at about 11 am on 21.10.2005, he left the bank and it is in such circumstances, the bank lodged the complaint and now the articles and money of the bank is fully secured and therefore the bank has no grievance against the petitioner and the case could be closed as withdrawn as the complaint was withdrawn. 4. Learned senior counsel argued that the complaint happened to be filed by the bank only for the failure of petitioner to close the account before he left bank on 21.10.2005 and subsequently on 27.10.2005, he settled the entire account and the bank has not sustained CRMC 1227/2010 3 any loss and the case is to be quashed. 5. As final report shows that Cws 2 to 8 had pledged gold ornaments while petitioner was working as its Manager to ascertain whether pledged ornaments were properly accounted, learned Public Prosecutor was directed to get instructions whether Cws 2 to 8 sustained loss. Learned Public Prosecutor, on instructions submitted that they did not sustain any loss. 6. The question is whether the offences alleged against petitioner are purely personal in nature which could be quashed based on Annexure II communication sent by bank to the police officer intimating that the bank has not sustained any loss and two days after registration of the case, petitioner has settled the account. Learned Public Prosecutor made available the Case Diary. Case Diary shows that petitioner, while working as the Manager of the bank, did not properly account the gold ornaments pledged and unauthorisedly removed the gold ornaments and pledged them in other Banks and received money and only after registration of the crime, the said account was closed and gold ornaments were taken back to the bank. CRMC 1227/2010 4 On proper appreciation of the facts, I cannot agree with the submission that offences alleged are purely personal in nature. In such circumstances, applying the principles laid down in Madan Mohan Abbot's case(supra), the case cannot be quashed. Petitioner is entitled to raise all the contentions before the learned Magistrate. 7. Learned senior counsel submitted that as case is pending in the long pending register, a direction be issued to the Magistrate to consider the application for bail on the date of his surrender. When an accused against whom a non bailable warrant is pending surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I find no reason to believe that the Magistrate is not aware of the law or the decision of this court or the Apex Court or that he will not act in accordance with law. Hence no direction is warranted. M.SASIDHARAN NAMBIAR, JUDGE lgk