IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 Crl.MC.No. 2845 of 2007() ------------------------- CC.359/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER(S): ACCUSED NO.2: ------------------------------------------------- K.M.MATHEW, KOLLIMAKIEL HOUSE, KURAVILANGADU P.O., KOTTAYAM DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): COMPLAINANT/ACCUSED NO.1/STATE: -------------------------------------------------------------------------------------- 1. THE SOUTH INDIAN BANK LTD., PALAI BRANCH, REPRESENTED BY ITS MANAGER & PRINCIPAL OFFICER, MATHEW KOICKAL, S/O K.V.JOHN, KOICKEL HOUSE, CHERPUMKAL P.O., KIDANGOOR VILLAGE, KOTTAYAM DISTRICT. 2. ABRAHAM PHILIP, S/O PHILIP, VELUTHADATHUKATTIL HOUSE, KALAKETTY KARA, KALAKETTY VILLAGE, KALAKETTY P.O., KOTTAYAM DISTRICT. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.2845/2007 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE COMPLAINT BEARING CMP.NO.1428/2004 DTD. NIL LODGED BY THE 1ST RESPONDENT BEFORE JFCM COURT PALAI. ANNEX.B: COPY OF THE ENCUMBRANCE CERTIFICATE BEARING NO.1699/1994 OF THE ERATTUPETTA S.R.O. ANNEX.C: COPY OF THE JUDGMENT DTD. 30/06/2005 IN O.S.NO.43/2001 IN THE FILE OF SUB COURT, PALAI. ANNEX.D: COPY OF THE FORM OF THE ENCUMBRANCE CERTIFICATE PRESCRIBED IN APPENDIX NO.VII UNDER RULE NO.168 AND 169. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 2845 of 2007 ------------------------------------------ Dated this the 24th day of November, 2011 ORDER Petitioner is the second accused in CC.359/2006 of JFCM, Pala. The complaint was filed by the first respondent, the South Indian Bank Limited against the second respondent and against the petitioner alleging commission of offence under Section 420, 421, 468 and 471 r/w 34 IPC. The encumbrance certificate bearing No.1699/1994 issued by the petitioner herein as the then Sub Registrar, Erattupetta was produced by the accused for obtaining loan from the complainant bank. The first accused offered immovable properties as collateral security for a loan of Rs.50,000/- obtained by him from the complainant bank. For sanctioning loan, besides other documents, encumbrance certificate was also produced. In fact, out of the property measuring 1.48 acres offered as collateral security, the first accused had already transferred 90 cents of land to his brother long prior to the application for loan was filed for encumbrance certificate but suppressing the Crl.M.C.No. 2845 of 2007 -: 2 :- factum of earlier sale the encumbrance certificate was issued by the petitioner. Therefore, according to the complainant the petitioner herein and the first accused with their common intention cheated the bank. It was also contended that they had the dishonest intention to cause wrongful loss to the bank and wrongful gain to the accused. The petitioner contends that the encumbrance certificate produced by the first accused before the complainant bank is a forged one and it was not issued by him. It is also contended that as the Sub Registrar he had to issue so many such certificates and it is the subordinate who used to put-up the file for issuance of such certificate after filling-up the certificate form. But does it absolve the duty cast on him is the question. Whether the petitioner did it intentionally or with the required knoweldge would depend on the evidence. But in a petition filed under Section 482 CrPC, this court cannot jump to the conclusion that there was no meeting of minds between the petitionr Crl.M.C.No. 2845 of 2007 -: 3 :- and the first accused or that they had no common intention to commit the offence as mentioned above. Hence this petition is dismissed. The petitioner can raise all his contentions before the trial court. The petitioner can also request for exemption from personal appearance but his presence may be required to record his plea and at the time of recording of evidence and also for questioning him under Section 313 Cr.P.C. and on such dates the trial court may specify. N.K. BALAKRISHNAN, JUDGE smvd