IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Crl.M.C.No. 488 of 2008(A) CRIME NO. 542/2005 OF TALIPARAMBA POLICE STATION PENDING BEFORE JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA IN CC.310/2006 PETITIONER(S): PETITIONER --------------------------------------- DHARANEEDHARAN P., RESIDING AT NETHAJI COLONY, THICHAMBARAM, THALIPARAMBA, (FORMERLY SECRETARY, TALIPARAMBA CO-OPERATIVE HOUSE BUILDING SOCIETY, TALIPARAMBA). BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. EDAVAN SREEDEVI, W/O. VIJAYAN, NEAR SIDHASHRAMAM P.O., KURUMATHUR, TALIPARAMBA TALUK, KANNUR DISTRICT-670 142. 2. STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, TALIPARAMBA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. S.U.NAZAR R2 BY MR.JACOB SEBASTIAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 488 of 2008 ================== Dated this the 18th day of November, 2009. O R D E R 1. Petitioner is the accused in C.C.No.310/2006 on the file of the Judicial First Class Magistrate, Thaliparamba taken cognizance for the offence under Section 420 of Indian Penal Code on Annexure-8. Crime No.542 of 2005 for the offences under Section 420 of Indian Penal Code was registered on Annexure-1 complaint filed by the first respondent before Chief Judicial First Class Magistrate, Thaliparamba, which was sent for investigation under Section 156(3) of Code of Criminal Procedure. It is after investigation, Annexure-8 final report was submitted and taken cognizance by the learned Magistrate. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that no offence under Section 420 of Indian Penal Code is attracted on the allegations raised in the Annexures-1 as well as A8 final Crl.M.C. No. 488 of 2008 -2- report. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. The first respondent defacto complaint is represented by a counsel. 3. The allegations against the petitioner in Annexure-1 complaint is that, petitioner, at the time of filing the petition, was under suspension and he was the Secretary of Taliparamba Co-operative House Building Society and first respondent had obtained a housing loan. As per the allegations, in the first week of March 2003 first respondent was called to the Office of the Kerala State Co-operative House Building Federation and petitioner informed her that if the entire loan amount is paid before 31/03/2005, she will get a concession of Rs.20,000/- and she need only to deposit a balance amount of Rs.70,000/-. Therefore, obtaining the amount from others, on 29/3/2005, she remitted Rs.77,045/- before the petitioner and petitioner issued Receipt No.2151 for the said payments and promised that the title deeds Crl.M.C. No. 488 of 2008 -3- which are deposited before the society as security would be returned within some days. It is alleged that as the title deeds were not returned and getting suspicious, first respondent enquired with Kerala State Co-operative House Building Federation and found that Rs.77045.75/- remitted by the first respondent with the petitioner and it was not remitted to the account of Kerala State Co-operative House Building Federation. It is on the allegation that with an intention to cheat, first respondent misappropriated the amount, the complaint was filed, alleging offences under Sections 420, 463, 458, 405, 406 and 407 of Indian Penal Code. 4. The only offence alleged in the final report is that petitioner committed offence under Section 420 of Indian Penal Code. As rightly pointed out by the learned counsel appearing for the petitioner, the final report shows that Rs.77,046/- in the account of the first respondent was remitted to the Kerala State Co-operative Housing Crl.M.C. No. 488 of 2008 -4- Federation Limited and the said amount was on account of the settlement arrived at the office of the petitioner's Society. It is therefore, clear that there was no misappropriation of the amount remitted by the first respondent. 5. The final report also does not show that there were any misappropriation. The case was only that rebate for the loan transaction of the first respondent was not remitted before the Federation within the time. Even if that allegation is correct to attract an offence under Section 420 of Indian Penal Code, there should be a dishonest intention to cheat on the part of the petitioner when he represented to the first respondent that if the entire loan amount is remitted before 31/3/2005, she will get a discount of Rs.20,000/- and on that representation first respondent paid the amount. There is no such case. There is no other allegation either in the complaint or in the FIR to attract the offence under Section 420 of Indian Penal Code. In such Crl.M.C. No. 488 of 2008 -5- circumstance even if the petitioner is to be tried, there is no likelihood of a successful prosecution. In such circumstances, it is not in the interest of the justice to continue the prosecution. Petition is allowed C.C.310/2006 on the file of Chief Judicial Magistrate is quashed. M.SASIDHARAN NAMBIAR JUDGE nl