IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Crl.MC.No. 2721 of 2009() ------------------------- CC.1528/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... PETITIONER(S): ACCUSED 1 AND 2: ------------------------------------------------------ 1. E.T.RAGHAVAN, S/O THAMBIKUTTY, EDAPPARAMBIL HOUSE, VELLACHIRA DESOM, ALOOR VILLAGE, THRISSUR DISTRICT. 2. MALLIKA, W/O RAGHAVAN, -DO- -DO-. BY ADVS. MR.M.N.UNNIKRISHNAN, MR.JAMSHEED HAFIZ. RESPONDENT(S): COMPLAINANT/DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. BRANCH MANAGER, BANK OF BARODA, ASHTAMICHIRA BRANCH, MALA, TRICHUR DISTRICT. R1 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2721 OF 2009 =========================== Dated this the 10th day of December,2009 ORDER Petitioners are the accused in C.C.1528/2008 on the file of Judicial First Class Magistrate Court, Chalakkudy taken cognizance for the offence under section 420 read with section 34 of Indian Penal code on Annexure 2 final report. The prosecution case is that petitioners approached second respondent,the de facto complainant for a loan offering to mortgage their properties in survey Nos.1512/3, 1512/7 and believing the representation a loan of Rs.1,80,000/- was sanctioned. Petitioners failed to remit the amount after remitting Rs.5,130/- on 12.3.2004 and Rs.2,650/- on 8.6.2004 and inspite of demand the balance was not remitted. When notice was sent to the petitioners to remit the amount threatening action under SARFAESI Act and the District Collector was requested to take proceedings Tahsildar on getting report from the Village Officer intimated that the survey number is different from the document and the property given as security had earlier been mortgaged to Federal Bank, Crl.M.C.2721/2009 2 Chalakudy and Indian Bank of Housing as well as Adoor Kuries and thereby petitioners have committed the offences under section 420 of Indian Penal Code. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings contending that it is essentially a civil liability. 2. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 3. The argument of the learned counsel for the petitioners is that the property has to be identified not with reference to survey number alone but based on the boundaries also and for the reason that survey number is given in the title deed petitioners cannot be prosecuted for an offence under section 420 of Indian Penal Code. The learned counsel also argued that as the grievance of the second respondent is non-payment of the loan amount, remedy is to approach the civil court and not to initiate the criminal prosecution and continuation of the proceedings is only an abuse of process of court. 4. It is the prosecution case that but for the inducement made by the petitioners that they are owning the properties which were given as security, the Bank would not have released a loan of Rs.1,80,000/- to the petitioners. When the specific case of the prosecution is Crl.M.C.2721/2009 3 that suppressing the existence of other loan in respect of the very same property, petitioners give security of the same property and induced the bank to part with the amount and thereafter misappropriated the same without repaying the same, it cannot be said that ingredients of an offence is not attracted. The question whether there is sufficient evidence to convict the petitioners or not is to be decided in the case and it cannot be decided in a petition under section 482 of the Code of Criminal Procedure. Petitioners are at liberty to raise all the contentions, at the time of trial. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006