IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 Crl.MC.No. 4526 of 2010() ------------------------------ CRIME NO.1546/2010 OF ADDL. CHIEF JUDICIAL MAGISTRATE COURT(ECONOMIC OFFENCES), ERNAKULAM) .................... PETITIONER(S): ACCUSED NO.16 IN THE FIR ---------------------------------------------------- A.V.SASI, AGED 42 YEARS, BADGE NO.2693, JCM (W) HE & GA DEPARTMENT, COCHIN SHIPYARD LTD, RESIDING AT PLOT NO.798 PANAMPILLY NAGAR, KOCHI - 36. BY ADVS. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C THOMAS RESPONDENT(S): DE-FACTO COMPLAINANT --------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.P.XAVIER, S/O.PAILY, AGED 56 YEARS, CHIRAYATH HOUSE, CHERANELLOOR - 682 034. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADVS. SRI.VIPIN NARAYAN SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/02/2011, ALONG WITH CRMC NO. 4761 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. ........................................... CRL.M.C.NOS.4526 & 4761 OF 2010 ............................................. Dated this the 28th day of February, 2011. O R D E R Petitioners are accused Nos.10 to 16 in Crime No.1546 of 2010 of Ernakulam Town South Police Station for the offences punishable under Sections 406,420,465,468 and Section 477 A read with Section 34 of I.P.C. That case was registered on the strength of Annexure -A2 complaint filed by the second respondent before learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and forwarded to the police for investigation under Section 156 (3) of the Code of Criminal Procedure. 2. Grievance of petitioners is that notwithstanding that there is no specific allegation against them in the complaint, learned ACJM has mechanically forwarded the complaint against them also to the police who registered Annexure-A1, FIR, and petitioners are now facing departmental action as seen from Annexure A14, memo : 2 : CRL.M.C.NOS.4526 & 4761 OF 2010 dated 8.10.2010 issued to them by their employer. 3. Petitioners and the second respondent are employees of M/s. Cochin Ship Yard Ltd (for short "the ship yard"). The Cochin Ship Yard Staff Co-operative House Construction Society (for short "the Society") is a society registered under the Kerala Co-operative Societies Act. Petitioners, second respondent and other employees of the Ship yard are members of that society. Petitioners were elected to the managing committee of that Society on 10.9.2009. 4. The second respondent filed a complaint (Annexure- A2) stating that the previous committee (of which accused 1 to 9 are members of the managing committee) had entered Annexures-A8 and A9, agreements with one K.P.Varghese as per a scheme evolved by the previous committee for construction of flats/houses for members of the society. As per the terms and conditions of the said agreements, the said K.P.Varghese was to obtain lands from the respective owners, develop the land and construct a : 3 : CRL.M.C.NOS.4526 & 4761 OF 2010 road having width of 30 feet and length of 900 meters to the said land. For the purpose of land development, a sum of Rs.8,13,68,000/= was given to said K.P. Varghese by the previous committee. Second respondent alleged that notwithstanding such payment nothing transpired and the previous committee falsified records. Second respondent had paid Rs.14,93,503/= towards value of building on 4.6.2008. That amount and amounts from the beneficiaries of the scheme were collected by accused 1 to 9. Accused 1 to 9 made the second respondent and others believe that land and road will be developed in 2008 itself but nothing transpired. On enquiry, it was revealed that accused 1 to 9 without entering into any agreement with the real owners of the property, entered into agreement (Annexures A8 and A9 with K.P. Varghese and intermediary and misappropriated amount collected from the second respondent and others. It is also alleged that the accused (obviously referring to the petitioners also) did not maintain proper accounts and thereby committed offences in furtherance of their common intention. Learned counsel for petitioners contend that there is no specific allegation against petitioners in the : 4 : CRL.M.C.NOS.4526 & 4761 OF 2010 complaint and in the circumstance, registration of case against petitioners is not proper. Learned counsel submitted that after petitioners were elected to the managing committee on 10.9.2009, they took several steps to unearth the illegal activities indulged in by the members of previous committee and complaints were preferred to the appropriate authorities. It is pointed out that immediately after assuming charge on 10.9.2009 Secretary of the Society gave Annexure-A4, complaint to the Joint Registrar on 31.10.2009 stating that many documents are missing from the society. Annexure-A5 is the reply from the Joint Registrar recommending the committee (consisting of petitioners) to prefer a complaint to the police. According to the petitioners in the mean time the general body of the society met and the members authorized the committee (constituted by the petitioners) to take appropriate legal action against irregularity committed by the previous committee, the second respondent is a party to that decision and following that, the present committee submitted Annexure A6, report dated 8.2.10 to the Registrar of Co-operative Societies to : 5 : CRL.M.C.NOS.4526 & 4761 OF 2010 conduct an enquiry under Section 69 of the Co-operative Societies Act about the activities of the previous committee. It is pointed out that Annexure A6 relates to the (alleged) irregularity committed by accused Nos. 1 to 9 who constituted managing committee of the previous committee. Annexure A7 is a petition dated 11.1.2010 submitted to the Chairman of the Ship yard requesting CBI investigation into the irregularities (allegedly) committed by accused Nos.1 to 9. Issue No.2 mentioned therein relates to the present allegations. It is also pointed that the committee comprising of petitioners filed Annexure-A13 petition before the Registrar on 17.2.2010 to recover a sum of Rs.8,13,68,000/= from the said K.P.Varghese. Second respondent who was aware of all these acts done by the petitioners has chosen to file Annexure A2 complaint only on 20.9.2010. Learned counsel submitted that in view of the complaint and registration of the FIR against petitioners, who had nothing to do with the scheme which is now under challenge, they have been served with Annexure A14, memo dated 8.10.2010. In the circumstances, it is requested that the FIR against : 6 : CRL.M.C.NOS.4526 & 4761 OF 2010 petitioners may be quashed. According to the learned counsel, if in the course of investigation it is revealed that petitioners or any of them are also involved in the commission of any offence, it is open to the Investigating Officer to submit an interim report in that line implicating all or any of the petitioners. Learned counsel for second respondent supported the complaint and the FIR. It is contended that the second respondent is not aware of all the acts played by petitioners in the irregularities surrounding the scheme and hence second respondent could not be expected to make specific allegations in the complaint against petitioners. It is also the grievance of the learned counsel for the second respondent that so far, no effective investigation has been conducted by the officer concerned. Learned Public Prosecutor has submitted that investigation is progressing and at this stage it is not possible to say whether petitioners or any of them are involved in the offences alleged. 5. I have gone though Annexure-A2, complaint and other documents appended to this petition. Going through : 7 : CRL.M.C.NOS.4526 & 4761 OF 2010 Annex.ure-A2, complaint it is seen that allegations are levelled against members of the committee which was in office before 10.9.2009. I was not able to find any specific allegation against members of the committee which took charge on 10.9.2009 except the bald statement that " all the accused in furtherance of their common intention committed the acts". Learned counsel for 2nd respondent has invited my attention to Annexure-A12, letter dated 23.11.2009 from K.P. Varghese to the Secretary of the committee which took charge on 10.9.2009 requesting time for completion of construction of road. According to the learned counsel, as desired in Annexure A12, the committee which took charge on 10.9.2009 extended time in favour of K.P. Varghese. 6. I am not going into the question whether petitioners have committed any offence. Presently I am concerned with the question whether averments in the complaint are sufficient to sustain Annexure A1 FIR against petitioners. On going through the averments in the complaint, I am constrained to say that I do not find sufficient averments to : 8 : CRL.M.C.NOS.4526 & 4761 OF 2010 lodge an FIR against petitioners. But I make it clear that the investigating agency can look into the whole matter including involvement, if any of petitioners and if investigation reveals involvement of any of the petitioners it would be open to them to submit appropriate report in that line to the court and proceed with the investigation against them. Resultantly, these petitions are allowed in the following lines: i. Annexure-A1 FIR in Crime No.1546 of 2010 of Ernakulam Town South Police Station to the extent it concerned petitioners (accused 10 to 16) is quashed. ii. It is made clear that this order will not prevent the investigating agency looking into the whole matter including the involvement if any of any of petitioners (accused 10 to 16) and if in the course of investigation it is revealed that petitioners or any of them are involved in any offence as alleged or in other offence that the investigating agency may come across, it is open to the investigating agency to submit a report in that line to the Magistrate and proceed : 9 : CRL.M.C.NOS.4526 & 4761 OF 2010 against petitioners or such of them as the case may be for such offence. iii. I make it clear that I have not gone into the merit of the case and decided either way on that. THOMAS P. JOSEPH, JUDGE. cl : 10 : CRL.M.C.NOS.4526 & 4761 OF 2010