IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 1059 of 2008(D) ------------------------------------ C.C.NO.29/2008 OF JUDL.MAGISTRATE COURT, ERNAKULAM (CRIME NO.683/2002 OF CENTRAL POLICE STATION) PETITIONER(S): ACCUSED NOS. 1,3,4, & 5 ---------------------------------------------------------- 1. THOMAS CHANDY, S/O.K.C.THOMAS H.NO.74, NEAR SKYLINE APARTMENT, JAWAHAR NAGAR ELAMKULAM. 2. TEENA CHANDI, W/O.THOMAS CHANDY H.NO.74, NEAR SKYLINE APARTMENT, JAWAHAR NAGAR ELAMKULAM. 3. GEORGE THOMAS, S/O.K.C. THOMAS H. NO.74, NEAR SKYLINE APARTMENT JAWAHAR NAGAR, ELAMKULAM. 4. TOM K.THOMAS, S/O.K.C. THOMAS H. NO.74, NEAR SKYLINE APARTMENT JAWAHAR NAGAR, ELAMKULAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE ----------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. (CRIME NO.683 OF 2002 OF CENTRAL POLICE STATION) PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1059 OF 2008 =========================== Dated this the 7th day of August,2009 ORDER Petitioners are the partners of M/s.Security Equipment Agencies, Ernakulam and the accused 1,3, 4 and 5 in C.C.29/2008 on the file of Chief Judicial Magistrate Court, Ernakulam. It is submitted that second accused is no more. M/s.Security Equipment Agencies, Ernakulam had submitted a quotation to supply cash chests to the office of the Excise Circle Inspector, Ernakulam. The tender submitted by the firm was accepted and Rs.1,10,941/- was paid to the first petitioner on behalf of the firm. The firm had agreed to supply six security cash chests. Two chests were supplied respectively on 19.5.1998 and 12.10.1998. The remaining chests were not supplied. Based on a complaint filed by the Excise Circle Inspector, Ernakulam Crime 683/2002, for the offence under section 420 read with section 34 of Indian Penal Code, was registered against all the partners of the firm on 1.10.2002. After investigation Annexure 1 final report was submitted alleging that all the accused committed Crl.M.C.1059/2008 2 offence under section 420 read with section 34 of Indian Penal Code. It was taken cognizance by the learned Magistrate. When revenue recovery proceedings were initiated for the amount due for non supply of the remaining chests first petitioner filed O.P.7447/2003 submitting that the failure to supply the remaining chests were not wilful but due to the lay off in the Company. Under Annexure 2 judgment, this court permitted the partners of the firm to settle the entire claim within one month from the date of receipt of a copy of the judgment, making it clear that what is to be repaid is not only the amount received but its interest. It is made clear that the recovery proceedings will remain stayed for payment as provided in the judgment and if liability is settled, no criminal prosecution shall be launched and if not in addition to launching prosecution proceedings is to be initiated to recover the amount due. This petition is filed under section 482 of the Code of Criminal Procedure to quash Annexure 1 final report as well as all further proceedings contending that the essential ingredients of an offence under section 420 of Indian Penal Code is not attracted and in any case when petitioners have discharged the entire liability, it is not in the interest of justice to prosecute the petitioners further. Crl.M.C.1059/2008 3 2. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 3. Learned counsel submitted that the failure to supply the remaining four chests, agreed to be supplied was not wilful or with an intention to cheat but only because of the lay off and pursuant to Annexure 2 judgment petitioners have not only repaid the principal amount but interest upto that date and therefore it is not in the interest of justice to continue the prosecution. Learned counsel also pointed out that even if petitioners are to be tried, there is no chance for a successful prosecution as there is no allegation on the material ingredients of the offence. 4. Learned Public Prosecutor submitted that though under Annexure 2 judgment petitioner was granted one month's time from the date of receipt of the judgment to pay the entire amount, including interest upto that date, the payment was made only on 1.10.2007 and 6.10.2007 after more than one year from the date of the judgment and the final report was filed earlier on 6.9.2007 though cognizance was taken only later. It is therefore submitted that petitioners are not entitled to get the case quashed. 5. Annexure 1 final report does not show that prosecution has a case that petitioners, as partners of the Crl.M.C.1059/2008 4 Security Equipment Agencies, Ernakulam, submitted the tender or entered into an agreement to supply six security cash chests with a dishonest intention to cheat or received Rs.1,10,941/- with the dishonest intention. Annexure 2 judgment shows that the failure to supply the remaining chests was not the result of a dishonest intention to cheat but due to the other circumstance. Annexure 2 judgment itself enables the petitioners to pay off the entire amount received with interest within one month, making it clear that on such payment no prosecution shall be launched. True, what is provided under Annexure 2 judgment is a payment within a period of one month from the date of receipt of a copy of the judgment. It is also true that petitioners did not pay the amount, either the principal or the interest, before Annexure 1 final report was submitted before the court. But it is admitted that later by 6.10.2007 petitioners have repaid the entire amount received inclusive of the interest. The question is whether in such circumstance, the case is allowed to be further prosecuted. 6. In the absence of a case for the prosecution that petitioners entered into an agreement and persuaded the complainant to part with Rs.1,10,941/-, with a dishonest intention to cheat, even if petitioners are to be tried, Crl.M.C.1059/2008 5 there is no chance for a conviction. It is admitted case that out of six security chests, agreed to be supplied, two were supplied. Therefore on the facts, it cannot be stated that the agreement was entered into or the advance amount was received with a dishonest intention to cheat. If that be so, even if petitioners are to be tried, chance of a successful prosecution is very bleak. In such circumstance, when petitioners have paid the entire amount due inclusive of the interest upto the date of payment, though not within the period as provided in Annexure 2 judgment, it is not in the interest of justice to proceed with the prosecution. Hence petition is allowed. C.C.29/2008 on the file of Chief Judicial Magistrate Court, Ernakulam is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006