IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.MC.No. 3544 of 2006() ------------------------------------ CC.279/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... PETITIONER/ACCSUED --------------------------------- DIVYA, D/O.SURENDRAN, SUJA BHAVAN, POTTANCHIRA, KOTTAKKAKOM, ARYANADU, NEDUMANGADU, THIRUVANANTHAPURAM. BY ADV. MR.K.ABDUL JAWAD MR.A.RAHIM RESPONDENTS/COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, ARYANAD POLICE STATION. 3. SALU G., AKHILA BHAVAN, NEDUVELI, VEMPAYAM, NEDUMANGAD, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR MR.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3544 of 2006 =========================== Dated this the 10th day of July,2009 ORDER Third accused in C.C. 279/2006 on the file of Judicial First Class Magistrate Court, Nedumangad is the petitioner. Third respondent is the complainant. Though notice was served on the third respondent she did not appear.Third respondent, originally filed Annexure E complaint before Judicial First Class Magistrate Court, Nedumangad against petitioner and her parents who are accused 1 and 2, alleging that all of them committed offence under section 420 read with section 34 of Indian Penal code. Learned Magistrate forwarded the complaint for investigation under section 156(3) of Code of Criminal Procedure. After investigation, Annexure A final report was filed which was taken cognizance for the Crl.M.C.3544/2006 2 offence under section 420 read with section 34 Indian Penal Code by the Magistrate. This petition is filed under section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that even if the prosecution case is accepted, there is no material to proceed against the petitioner and therefore continuation of the proceedings as against the petitioner is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As rightly argued by the learned counsel appearing for the petitioner, even if Annexure E complaint is accepted in toto, the only case is that the accused jointly obtained Rs.85,000/- promising to repay the same and if not the property of the first accused would be sold and first accused executed promissory note on 3.8.2002 and did not repay the amount inspite of demand and Crl.M.C.3544/2006 3 later third respondent came to know that accused have borrowed the amount from several persons and did not pay and along with other creditors petitioner also participated in the agitation in front of the house of the petitioner and eventhough first accused agreed to execute a sale deed, it was later known to third respondent that she had executed a sale deed in favour of the petitioner, her daughter and therefore the accused committed offence under section 420 of Indian Penal Code. Except the allegation that first accused executed sale deed in respect of property in favour of the petitioner, there is no specific allegation in Annexure E as against the petitioner. Learned counsel pointed out that Annexure A F.I.R of the third respondent, recorded during the course of investigation by the Investigating Officer under section 161 of Code of Criminal Procedure, establish that petitioner did not approach the third respondent when Rs.85,000/- was borrowed or Crl.M.C.3544/2006 4 promissory note was executed and therefore there cannot be an intention on the part of the petitioner to cheat her and for that sole reason the case as against the petitioner is to be quashed. 4. If there is an allegation in Annexure E complaint that all the accused had a common intention to cheat when Rs.85,000/- was borrowed the case could have been accepted. The statement of the third respondent recorded under section 161 of the Code of Criminal Procedure shows that petitioner did not approach the third respondent and third respondent has no case that along with accused 1 and 2, petitioner also asked for the loan. In such circumstance, it cannot be said that even if the case is accepted, petitioner made the third respondent, to part with money with the dishonest intention at that time so as to attract an offence under section 420 of Indian Penal Code. If that be so, continuation of the proceeding as Crl.M.C.3544/2006 5 against the petitioner is only an abuse of process of court. Petition is allowed. C.C.279/2006 on the file of Judicial First Class Magistrate Court-I, Nedumangad as against the petitioner/third accused is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006