Ajeesh Bhasker v. State of Kerala and Samon M. Sakaria

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** # **THURSDAY, THE 1ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944** **CRL.MC NO. 2346 OF 2019** **[TO QUASH ALL FURTHER PROCEEDINGS IN C.C.NO.2174 OF 2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, KOTTAYAM ARISING FROM CRIME NO.372/2016 OF PAMPADY POLICE STATION, KOTTAYAM]** ## **PETITIONER/4TH ACCUSED:** AJEESH BHASKER, AGED 37 YEARS S/O.BHASKARAN, MALATHETTU VEEDU, RUBBER BOARD P.O. PUTHUPPALLY, KOTTAYAM-680009 BY ADVS. C.HARIKUMAR SRI.RENJITH RAJAPPAN SRI.HARIKRISHNAN ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031. - 2 SAMON M.SAKARIA AGED 40 YEARS S/O.SAKARIA KURIAN, PAYIPRA HOUSE, 8TH MILE BHAGOM , VELLOOR.P.O., PAMPADY, KOTTAYAM -686501. R2 BY ADV SRI.LIJI.J.VADAKEDOM ## **OTHER PRESENT:** R1 BY ADV. SUDHEER GOPALAKRISHANAN - PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.08.2022, THE COURT ON 01.09.2022 PASSED THE FOLLOWING: CRL.MC No.2346 /2019 2 ## **O R D E R** The petitioner is the 4[th] accused in Crime No.372/2016 of Pampady Police Station, which is now pending as C.C.No.2174/2017 on the file of the Judicial First Class Magistrate Court-I, Kottayam. The offences alleged against the petitioner and the other accused are under Sections 406, 420 r/w. Section 34 of the Indian Penal Code (IPC). 2. The facts which led to the filing of this Crl.MC. are as follows: Initially, the Sub Inspector of Police, Pampady Police Station, registered Crime No.372/2016 based on the information submitted by the 2[nd] respondent as to the commission of the offences mentioned above by the accused persons, who were four in number. The crime was registered on the allegation that, the accused persons, with the intention of making an unlawful gain for themselves and to cause unlawful loss to the 2[nd] respondent, received an amount of Rs.5 lakhs from him on 18.11.2010 and a further sum of Rs.3,30,000/- on several occasions from the complainant by promising him to provide a job either in Milma or Rubber Board. Later, they failed to provide the CRL.MC No.2346 /2019 3 job as offered and the amount collected was also not returned. Annexure-A1 is the F.I.R. 3. The police conducted an investigation thereon and filed Annexure-A3 final report referring the case as one of civil nature. Against the said report, Annexure-A4 protest complaint was submitted by the 2[nd] respondent, and on the said complaint, a sworn statement of the 2[nd] respondent was recorded as Annexure-A5. Thereafter, the Judicial First Class Magistrate Court-I, Kottayam, has taken cognizance of the offence based on Annexure-A4 protest complaint, which is now pending consideration. This Crl.MC is filed by the petitioner challenging all further proceedings pursuant to Annexure-A4 which is against him. 4. Heard Sri.C.Harikumar, the learned counsel for the petitioner, Sri. Sudheer Goalakrishnan, the learned Public Prosecutor for the State and Sri. Liji J. Vadakedom, the learned counsel appearing from the 2[nd] respondent. 5. The first contention that has been raised by the learned counsel for the petitioner is that, in view of the finding contained in Annexure-A3 final report submitted by the police after CRL.MC No.2346 /2019 4 conducting an elaborate investigation, the cognizance taken on Annexure-A4 protest complaint which does not have any new materials than those were considered by the police, is unsustainable. It is also the case of the petitioner that, in Annexure A4 complaint, the complainant could not point out any manifest error in the investigation conducted by the Police, nor could he produce any new materials warranting the interference of the court. In the absence of such materials, the cognizance could not have been taken by the learned Magistrate, contends the learned counsel. The learned counsel also places reliance upon the judgment of this Court in **Parameswaran Nair v. Surendran and Another [2009(1) KLT 794]** . 6. In response to the aforesaid contention, the learned counsel for the 2[nd] respondent points out that, the principles laid down by this Court in **Parameswaran Nair’s** case (supra) cannot be made applicable to the facts of this case. The main distinction that the learned counsel for the 2[nd] respondent pointed out is that, in **Parameswaran Nair’s** case (supra), this court was dealing with a case in which the F.I.R. was registered based on a private complaint submitted by the complainant, which was referred for investigation by the Magistrate concerned under Section 156(3) of the CRL.MC No.2346 /2019 5 Cr. PC. After registering the crime, the Police referred the matter, and a second complaint was submitted by the complainant against the final report. The factual scenario on which this Court rendered the decision in **Parameswaran Nair’s** case (supra) was in that circumstances. On the other hand, in this case, the crime was registered not on the basis of any private complaint submitted before the Magistrate court but on the basis of the information furnished by the complainant/2[nd] respondent before the Police, as is evident from Annexure-A1 F.I.R. Therefore, Annexure-A4 complaint cannot be treated as a second complaint submitted by the petitioner and hence the requirements for entertaining a second complaint as held by this Court in **Parameswaran Nair’s** case (supra) cannot be made applicable in this case. 7. On examining the aforesaid aspect, I find some force in the contention of the learned counsel for the 2[nd] respondent. As pointed out by the learned counsel, Annexure-A1 F.I.R is registered not based on any private complaint but on the First Information Statement given by the 2[nd] respondent. The Police indeed arrived at a contrary finding after conducting an investigation. It is to be noted in this regard that, in the F.I.S, the specific case of the 2[nd] respondent was that the CRL.MC No.2346 /2019 6 accused persons had collected an amount of Rs.8,30,000/- on different occasions by persuading the 2[nd] respondent to believe that, upon making such payment, he will be provided with employment in Milma or Rubber Board. According to the 2[nd] respondent/complainant, the 2[nd] accused, the father of the petitioner and a political leader, claimed to have a close connection with the then Chief Minister of the State, and it was under his influence that a job was offered to be arranged. The outcome of the investigation conducted by the Police is completely different from the said version. After the investigation, the conclusion arrived at by the Police was that, the 1[st] and 2[nd] accused had borrowed some amount from the 2[nd] respondent on the security of certain cheques and the other signed documents. Even though the aforesaid amounts were later repaid, the said documents were not returned by the 2[nd] respondent. Later, the 2[nd] respondent threatened to initiate legal proceedings against the said accused persons on the strength of the aforesaid documents. At that juncture, an offer was happened to be made by the said accused persons to make an attempt to arrange a job for the 2[nd] respondent. The Police also found that no amount as claimed by the 2[nd] respondent was handed over to the accused persons on the promise of arranging a job. Therefore, it was treated as a case of monetary transactions between the parties; hence, the CRL.MC No.2346 /2019 7 complaint was referred as civil nature. In Annexure-A4 complaint, he reiterated the contentions he made in the F.I.S. When his statement was recorded as part of inquiry under Section 202 Cr.PC by the learned Magistrate also, he reiterated the said aspects. Thereafter, the learned Magistrate has taken cognizance of the said offences. 8. Thus, when the entire facts and circumstances of the case and the procedure adopted by the learned Magistrate are taken into consideration, I am of the view that, as rightly pointed out by the learned counsel for the 2[nd] respondent, this is not a case where the principles laid down by this Court in **Parameswaran Nair’s** case (supra) can be made applicable. When the police arrived at a different conclusion than mentioned by the defacto complainant in his F.I.S, the statute provides a remedy for the defacto complainant to submit a protest complaint against the police report. Under no circumstances the same can be treated as a second complaint which would restrict his right to initiate prosecution. Moreover, it is also the specific case of the 2[nd] respondent in Annexure-A4 that the police have conducted no proper investigation based on the information furnished by him to the Police. In such circumstances, when the defacto complainant is CRL.MC No.2346 /2019 8 submitting a protest complaint against the finding of the Police on the final report, the learned Magistrate has to take into consideration the contents of the final report as well as the materials placed on record by the complainant and arrive at a conclusion as to whether the cognizance of the offence is to be taken or not. In this case, the order taking cognizance is not placed on record, and the same is not under challenge. Therefore, I am not in a position to consider the question whether the learned Magistrate took the cognizance after considering the materials placed by the police as well as the materials in the protest complaint. Therefore, I am of the view that, the challenge raised by the petitioner on this ground cannot be considered. 9. Another contention put forward by the learned counsel for the petitioner is that, even if the entire allegations in Annexure-A4 complaint are accepted for their face value, no offence will get attracted as against the petitioner herein. It is also contended that, the petitioner was falsely implicated. To substantiate the same, the learned counsel for the petitioner places reliance upon Annexure-A6, which is a copy of the petitioner's passport. The relevance of the aforesaid document is that, according to the petitioner, as on the date of commission of the alleged crime, the petitioner was not in India. CRL.MC No.2346 /2019 9 Therefore, the allegation made against the petitioner in the complaint is impossible. The aforesaid contention is mainly raised by relying on the specific averments contained in Annexure-A4 complaint to the effect that the 2nd respondent paid the first installment of Rs.5 lakhs to the 2[nd] accused on 18.11.2010. It is also stated that at the relevant time, the other accused, including the petitioner, were present, and the amount was also handed over on their assurance. According to the learned counsel for the petitioner, the entries contained in Annexure A6 passport would indicate that the petitioner went to Nigeria on 13.11.2010 from Mumbai Airport and returned to India on 10.03.2011 from Nigeria. The date of handing over the amount is mentioned as 18.11.2010. Therefore, it was contended that going by the entries in Annexure-A6 passport, the petitioner was not in India at the relevant time. 10. Per contra, the learned counsel for the 2[nd] respondent would submit that, the contention the petitioner has raised is that of the plea of ‘Alibi’, which cannot be raised in a proceeding under Section 482 of Cr.PC. The sum and substance of the argument of the 2[nd] respondent is the plea of ‘Alibi’ and it is a matter of evidence which can only be considered during the course of a trial. The consideration of the CRL.MC No.2346 /2019 10 same in proceedings under Section 482 Cr.PC is beyond the scope of the same and would be premature. The learned counsel also relies on a decision rendered by the Hon’ble Supreme Court in **Rajendra Singh** ## **v. State of Uttar Pradesh and Another [2007(3) KLT 892].** 11. I have carefully gone through the entries in Annexure-A6 passport, the contents of which are not seriously denied by the 2[nd] respondent. It is true that under normal circumstances, the question of ‘Alibi’ cannot be considered in a proceeding under Section 482 Cr.PC, since the same is basically a question of fact which is to be decided during the trial. However, in this case, the document produced is a passport and the entries contained therein. The nature of documents which can be taken into consideration in a proceeding under Section 482 Cr.PC has come up before the Hon’ble Supreme Court in **Rajiv Thapar and Others v. Madan Lal Kapoor [(2013) 3 SCC 330].** It was held in the said judgment that, the documents produced by the accused could be taken into consideration if the said materials are sterling and of impeccable quality. It was held therein that to accept a document in a proceeding under Section 482 of Cr.PC, the material relied upon by the petitioner should dismiss and condemn the factual basis of the accusation as false. It was also held therein that, to invoke CRL.MC No.2346 /2019 11 its inherent jurisdiction of Section 482 Cr.PC, the High Court has to be fully satisfied that the materials produced by the accused is such that, it would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. 12. In the said decision, the matters to be considered while appreciating the documents produced by the accused are clearly mentioned in paragraph 23, in which it was observed as follows: _“23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under S.482 of the CrPC:_ _(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?_ _(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the_ CRL.MC No.2346 /2019 12 _charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false._ _(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?_ _(iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice?_ _If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under S.482 of the CrPC. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”_ 13. It is true that, in **Rajendra Singh** ’s case (supra), it was held by the Hon’ble Supreme Court that, the plea of ‘Alibi’ cannot be taken into consideration in a proceeding under Section 482 Cr.PC. The said observation was made by the Hon’ble Supreme Court mainly for the reason that the plea of the Alibi can be established by leading evidence in the trial and not by filing some affidavit/statements before CRL.MC No.2346 /2019 13 the High Court. However, it is to be noted that it was a case where the plea of ‘Alibi’ was taken based on a certificate produced by him to the effect that at the relevant time accused was attending a meeting as part of his official duty. However, the crucial aspect to be noticed in this case is that the document relied on by the petitioner is the passport and the entries contained therein. When the question of entry in a passport is considered, the certainty as to the presence or absence of the person concerned in the country can be clearly established. As held in **Rajiv Thapar’s** case (supra), the passport and the entries contained therein would make out materials which could not have been refuted or could not have been justifiably refuted by the defence because of its sterling and impeccable quality. In this case, if the entries made in Annexure-A6 passport are considered, it would lead to an irresistible conclusion that the petitioner was not present in India on the date 18.11.2010 when the crucial incident, which is the subject matter of the complaint, occurred. 14. On carefully scrutinizing the averments contained in Annexure-A4, it can be seen that the major allegations are raised against the 1[st] and 2[nd] accused, the brother and father of the petitioner, respectively. Even according to the complainant, the main transactions were with the said accused. The only instance which CRL.MC No.2346 /2019 14 connects the petitioner with the offence, is the presence of the petitioner on 18.11.2010, when an amount of Rs.5 lakhs was handed over by the 2[nd] respondent/complainant to the 2[nd] accused. The aforesaid aspect is reiterated by the 2[nd] respondent when his sworn statement was recorded as evidenced by Annexure-A5, wherein it is specifically mentioned that, while handing over the amount to the 2[nd] accused, all the other accused were present. Apart from the aforesaid incident, there are no other allegations or materials indicating the complicity of the petitioner herein. Therefore, to establish the petitioner's involvement in the commission of the crime, he must be present in India on 18.11.2010. This is impossible, going by the entries contained in Annexure-A6 passport. In my view, by nature, it is a material of sterling and impeccable quality, which cannot be simply ignored while considering the complicity of the petitioner. Therefore, taking into account the absolute improbability of the presence of the accused on 18.11.2010 and also the vague nature of allegations against the petitioner herein in Annexure-A4 complaint as well as Annexure-A5 sworn statement of the 2[nd] respondent, it can be safely concluded that the materials produced along with the complaint would not even remotely establish the complicity of the petitioner herein. It is the specific case of the petitioner that he was implicated as one of the CRL.MC No.2346 /2019 15 accused, mainly on the reason that the house in which the other accused, who are his father and siblings, are residing, is in the name of the petitioner. Therefore, to put pressure on the accused, the petitioner was implicated as one of the accused. In the facts and circumstances of the case as mentioned above, the aforesaid possibility cannot be ruled out. 15. Thus, after taking into account the relevant aspects, I am of the view that, the prosecution as against the petitioner herein is an abuse of process of law and liable to be interfered with by invoking the inherent powers of this Court under Section 482 Cr.PC. In the result, this Crl.M.C. is allowed, and all further proceedings in C.C.No.2174/2017 on the file of the Judicial First Class Magistrate Court-1, Kottayam, as against the petitioner herein alone are hereby quashed. Sd/ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.2346 /2019 16 ## **APPENDIX OF CRL.MC 2346/2019** PETITIONER’S ANNEXURES: ANNEXURE A1 THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.372/2016 OF THE PAMPADY POLICE STATION, THRISSUR DISTRICT DATED 11.3.2016 ANNEXURE A2 THE TRUE COPY OF THE AGREEMENT BETWEEN THE COMPLAINANT AND THE 1ST ACCUSED DATED 20.12.2013 - ANNEXURE A3 THE TRUE COPY OF THE REFER CHARGE FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTAYAM BY THE S.I. OF POLICE, PAMBADI POLICE STATION DATED 27/04/2016. ANNEXURE A4 THE CERTIFIED COPY OF THE SECOND COMPLAINT IN CC.NO.2174/2017 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTAYAM DATED 15/10/2016. - ANNEXURE A5 THE CERTIFIED COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTAYAM ANNEXURE A6 THE TRUE COPY O THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER EVIDENCING THAT HE LEFT INDIA ON 29.10.2010