IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 Crl.MC.No. 4467 of 2010() ------------------------------------ CC.93/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, KOZHIKODE. .................... PETITIONER/ACCUSED: ----------------------------------- A.K.LINISH, S/O.VIJAYAN, ARAYANKULANGARA HOUSE, IRUVALLUR, CHELANNUR AMSOM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN, SRI.P.M.PADMANABHAN, SRI.P.A.HARISH. RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE-673 004. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. C.D. BOBY, S/O.DEVASSIA, CHEMMANNUR FASHION JEWELLERY, M.M. ALI ROAD, CALICUT-673 002. R1 & R2 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. R3 BY ADV. SRI.T.SHAJITH, SRI.K.H.ASIF. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/11/2010, ALONG WITH CRMC NO. 4058 OF 2010 AND CRMC NO. 4060 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR,J. --------------------------------------------------------------- CRL.M.C.NO.4060,4467, & 4058 OF 2010 ---------------------------------------------------------------- Dated 22nd November, 2010 O R D E R Petitioner is the first accused in C.C.92/2010 and the sole accused in C.C.93/2010 on the file of Judicial First Class Magistrate's Court-VI, Kozhikode. These petitions are filed under Section 482 of Code of Criminal Procedure. Crl.M.C.4058/2010 is filed to quash Annexure-A9 charge framed by the learned Magistrate in C.C.92/2010. Crl.M.C.4060/2010 is filed to quash Annexure- A9 charge in C.C.93/2010. Crl.M.C.4467/2010 is filed to quash Annexure-A4 report and the order passed by the learned Magistrate thereon. The case had a checkered history. Annexure-A1 final report was submitted by Circle Inspector of Police, Kasaba Police Crmc,4467,4060 &4058/2010 2 Station, Kozhikode on 29/4/2002 in crime No.310/2001 registered for the offence under Section 408, 419, 420, 468 and 471 read with Section 34 of Indian Penal Code against four accused. Along with the final report, two charges were submitted, one as against first accused alone and the second as against all the four accused. Allegation as against the first accused alone was that he misappropriated Rs.30,000/- out Rs.80,000/- and Rs.50,000/- out of Rs.1,00,000/- which were entrusted to him in his capacity as the Accountant-cum-Manager of Chemmannur Jwellers, Kozhikode, to be deposited in account No.835 in Mavoor Road branch of Syndicate Bank. Allegation is that out of Rs.80,000/- entrusted on 8/9/2001, only Rs.50,000/- was remitted, but the receipt obtained by the bank was altered to make it appear that Rs.80,000/- was deposited. It is Crmc,4467,4060 &4058/2010 3 also alleged that on 14/9/2001 out of Rs.1,00,000/- entrusted, only Rs.50,000/- was deposited but entry was altered in the counter foil receipt to appear that Rs.1,00,000/- was deposited. The allegation is that first accused thereby misappropriated Rs.80,000/- and committed the offences under Sections 408 and 468 of Indian Penal Code. In the second charge, it is alleged that the four accused committed the offences under Sections 408 419, 420, 468 and 471 read Section 34 of Indian Penal Code alleging that the first accused, with the intention to cheat Chemmannur Jwellers, got printed duplicate receipts of Chemmannur Jwellery gold purchase scheme and in furtherance of their common intention with the other accused and with the aid of second accused, procured details of the members of the scheme, forged receipts in the name with Crmc,4467,4060 &4058/2010 4 the aid of accused 2 to 4 and by producing those receipts, induced the jwellers to pay money and misappropriated the money and committed the offences. Learned Magistrate took cognizance of the offences in C.C.75/2002. The charge was framed in Malayalam against all the accused together. Accused 2 to 4 challenged that order before this court in Crl.R.P.1872/2007. By Annexure-A3 order dated 20/6/2007, this court quashed the charge and directed the Magistrate to frame charge afresh or to discharge the accused, after hearing the prosecutor and the accused. Learned Magistrate thereafter framed Annexure-A4 charge in English on 19/11/2007. That charge was framed in two separate parts. First part relates to first accused alone and the second part relates to all the accused. First part was named as first charge and second part as second charge. Crmc,4467,4060 &4058/2010 5 Accused 2 to 4 challenged that charge again before this court by filing Crl.M.C.248/2008. By Annexure-A5 order this court quashed that charge finding that learned Magistrate should have assigned two separate C.C. numbers for each charge and should not have framed two separate charges in one case. The learned Magistrate was directed to assign separate C.C.numbers for each of the charge sheets submitted namely, as against the first accused in one case and as against accused 1 to 4 in the other case. Special Prosecutor thereafter submitted Annexure-A6 charge separately against first accused in one case and against accused 1 to 4 in other case. Learned Chief Judicial Magistrate took cognizance of the offences against first accused alone as C.C.75/2002, which was the original number assigned and as against accused 1 to 4, in Crmc,4467,4060 &4058/2010 6 C.C.129/2009. When cognizance was taken, first accused filed Crl.M.C.2457/2010 to quash the charge in both the cases. By Annexure-A7 order, Crl.M.C.2457/2010 was disposed permitting first accused to seek discharge, in absentia, under Section 239 of Code of Criminal Procedure. That order was passed on 2/7/2010. Chief Judicial Magistrate thereafter transferred the case to Judicial First Class Magistrate's Court-VI, Kozhikode. Learned Magistrate took the case on file against first accused as C.C.93/2010 and against accused 1 to 4 as C.C.92/2010. First accused filed Crl.M.C.3576/2010 challenging the cognizance taken in C.C.92/2010 contending that separate copies of the document relied on by the prosecution were not supplied. First accused also filed Crl.M.C.3577/2010 raising the same allegations in C.c.93/2010. Accused 2 to 4 Crmc,4467,4060 &4058/2010 7 filed Crl.M.C.3561/2010 raising similar contentions. By Annexure-A8 common order dated 20/08/2010, petitions were dismissed holding that the case already stands scheduled and if accused did not get copies, they are entitled to bring it to the notice of the Magistrate who will give necessary directions. Learned Magistrate framed Annexure-A9 charge in C.C.93/2010 and Annexure-A10 charge in C.C.92/2010. Though in C.C.93/2010 prosecution case is with respect to misappropriation of parts of the amount misappropriated by the sole accused on 8/9/2001 and 14/9/2001, in Annexure- A9 charge framed by the learned Magistrate, charge thirdly to sixthly relate to the prosecution case in C.C.92/2010. In C.C.92/2010, same charges were incorporated in Annexure-A10 charge. Special Prosecutor finding that charge thirdly to sixthly in C.C.93/2010 Crmc,4467,4060 &4058/2010 8 should not have been framed by the learned Magistrate, filed Annexure-A4 report in Crl.M.C.4467/2010 to delete those charges and to frame specific charge for the offence under Section 420 of Indian Penal Code. According to the petitioner, it was objected before learned Magistrate but by a non speaking order, learned Magistrate allowed that petition. Crl.M.C.4467/2010 is filed to quash the said report and the order passed by learned Magistrate Crl.M.C.4060/2010 and 4058/2010 were filed to quash Annexure-A9 and A10 charges. 2. Learned counsel appearing for the petitioner, learned Public Prosecutor and learned counsel appearing for third respondent were heard. 3. Though learned counsel appearing for petitioners argued that entire Annexures-A9 and 10 charges are erroneous and learned Crmc,4467,4060 &4058/2010 9 Magistrate could not have split up and numbered two separate cases and in one case and should not have allowed Annexure-A4 report without a speaking order, on going through the orders passed by this court earlier and the records, I find no illegality in numbering two cases or proceeding as against first accused in C.C.93/2010 and as against accused 1 to 4 in C.C.92/2010. 4. Though one crime was registered, it is not the law that more than one charge cannot be submitted in that crime. After investigation, it was found that first accused committed certain offences separately and first accused along with the other accused committed other offences which are not inter connected and are distinct and separate. Case in C.C.93/2010 is that on 8/9/2001 petitioner was entrusted with RS.80,000/- and instead of Crmc,4467,4060 &4058/2010 10 depositing Rs.80,000/-, he deposited only Rs.50,000/-. It is also the case that on 14/9/2001 petitioner was entrusted with Rs.1,00,000/- and he deposited only Rs.50,000/-. It is the case that receipts obtained on 8/9/2001 and 14/9/2001 were altered by entering Rs.80,000/-instead of Rs.50,000/- on 8/9/2001 and Rs.1,00,000/- instead of Rs.50,000/- on 14/9/2001 and first accused misappropriated Rs.8,000/- and thereby committed the offences. There is no allegation as against accused 2 to 4 with respect to that aspect. It is in such circumstances, investigating officer submitted a separate charge though without taking note of it, learned Magistrate has taken cognizance against all in one case. This court finding the said defect by Annexure-A5 order directed learned Magistrate to assign two separate C.C Crmc,4467,4060 &4058/2010 11 numbers in respect of the charges. It is pursuant to that direction, first charge against all the accused was taken on file as C.C.129/2009 and as against sole accused C.C.75/2002. The cases were transferred to Judicial First Class Magistrate's Court-VI, Kozhikode by Chief Judicial Magistrate where the cases were originally pending. They are now numbered as C.C.92/2010 and C.C.93/2010. Therefore, I find no reason to interfere with the order of the learned Magistrate assigning two separate numbers. 5. Though in C.C.93/2010 prosecution case is limited to misappropriation and forgery with regard to Rs.80,000/- and Rs.1,00,000/- entrusted to the petitioner on 8/9/2001 and 14/9/2001, in Annexure-A9 charge learned Magistrate has wrongly included the charge which should have been framed only in Crmc,4467,4060 &4058/2010 12 C.C.92/2010. It is in such circumstances, Special Prosecutor subsequently filed report for deleting those charges. On hearing the learned counsel appearing for the petitioner and Public Prosecutor, it is clear that charges thirdly to sixthly in Annexure-A9, charge framed in C.C.93/2010 do not arise at all. Hence, exercising the inherent powers under Section 482 of Code of Criminal Procedure, charge thirdly to sixthly in Annexure-A9 charge in C.C.93/2010 is quashed. There is no illegality in Annexure-A10 charge framed in C.C.92/2010. 6. The Only other grievance is against Annexure-A4 report and the order passed therein. Annexure-A4 in Crl.M.C.4467/2010 shows that when Annexure-A4 report was filed by Special Prosecutor, learned Magistrate recording that both sides were heard, Crmc,4467,4060 &4058/2010 13 allowed the application without a speaking order. As it is not a speaking order, order dated 1/11/2010 in the report submitted by the Special Prosecutor in C.C.93/2010 on 1/11/2010 is quashed. In view of the order quashing charges thirdly to sixthly in C.C.93/2001, it may not necessary for the learned Magistrate to consider the said prayer in Annexure-A4. But as Special Prosecutor has a case that charge for the offence under Section 420 and 471 of Indian Penal Code also should be framed and it was omitted to be framed, learned Magistrate necessarily has to consider Annexure-A4 afresh after, hearing both the Special Prosecutor and the accused. learned Magistrate has to pass appropriate order thereafter in accordance with law. Petitions are allowed in part. Charges thirdly to sixthly in C.C.93/2010 on the file Crmc,4467,4060 &4058/2010 14 of Judicial First Class Magistrate's Court-VI, Kozhikode is quashed. Order passed by the Magistrate on Annexure-A4 report is quashed. Magistrate is directed to dispose Annexure-A4 report afresh. M.SASIDHARAN NAMBIAR, JUDGE. uj.