IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.MC.No. 1146 of 2005() ------------------------- CC.26/2003 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S): 4TH ACCUSED -------------------------- K.M.RAJITH, S/O. RAJAN, KOZHIPARAMBIL HOUSE, TALIKULAM VILLAGE, EDASSERY, TIPPUSULTHAN ROAD, VDANAPPILLY, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): COMPLAINANT -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2 IMPLEADED : 1. M/S.CALVARY HIRE PURCHASE CALVARY ROAD, THRISSUR – 4 REP. BY MANAGING PARTNER S.V.SIMON (IMPLEAED AS PER ORDER DT. 17.6.2005 IN M.A.7223/05) ADV. SRI.K.A.SREEJITH FOR R2 PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/10/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.M.C. No.1146 of 2005 ----------------------------------------------- Dated 22nd day of October, 2009. O R D E R A complaint was filed by second respondent against accused nos.1 to 3 (vide Annexure I) and as per the allegations, accused no.1 purchased an Ambassador car availing a hire purchase loan of Rs.39,000/- from the complainant and accused nos.2 and 3 are guarantors. They allegedly cheated complainant without paying the instalments and by misappropriating the amount. 2. The complaint was sent for investigation under Section 156(3) of the Criminal Procedure Code ('the Code', for short). After investigation, a final report was filed (Annexure II), arraying accused nos.1 to 5, stating that they allegedly committed offences under Sections 403, 406, 409, 420 read with Section 34 of the Indian Penal Code. As per the charge, the car was transferred by first accused to 4th accused and then it was transferred to the 5th accused and all of them committed various offences by not paying the instalments and dismantling the car. 3. Petitioner is the 4th accused. According to learned counsel for petitioner, petitioner is absolutely innocent. He Crl.M.C. No.1146/05 2 was not made an accused in FIR since no allegation was made against him in the complaint filed in this case. There is absolutely no allegation against petitioner in the complaint. Though a final report is filed, there is only a bare allegation made that the car was transferred to the petitioner. But petitioner was implicated as 4th accused without any supporting evidence. Annexure III to IV are the statements given under Section 161 of the Code by the relevant witnesses and as per those statements, petitioner is not implicated at all, it is pointed out. 4. On hearing both sides and on going through the documents available, it is clear that in the complaint filed, the petitioner was not an accused. There is no allegation that petitioner cheated the defacto complainant in any manner or he committed misappropriation. The present allegation is that the car involved in the case was transferred to petitioner. Normally in a case of transfer, there must be some documents revealing such transfer. Even if there are no such documents, there must be some evidence at least regarding possession of car by Crl.M.C. No.1146/05 3 petitioner or to show that he was actually in possession of the car. 5. Learned Public Prosecutor submitted that first accused's statement will reveal that the car was given to 4th accused who is petitioner herein. However he conceded that none of the witnesses gave any statement which will reveal that the car was transferred to the petitioner. In such circumstances, in the absence of any material to show that petitioner committed any of the acts, which will constitute ingredients of the offence alleged against petitioner, he cannot be proceeded against, on the basis of charge sheet-Annexure II. 6. Hence, the charge sheet laid against petitioner, Annexure II so far as it relates to the petitioner is quashed. All further proceedings pursuant to Annexure II, against the petitioner are quashed. Petition is allowed. K.HEMA, JUDGE.