C. Moidu Haji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940** **Crl.MC.No. 1872 of 2019** # **IN CC NO.430/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, MANANTHAVADY** **CRIME NO.78/CR/OCWI/TVPM/2010 OF CBCID HEADQUARTERS, THIRUVANANTHAPURAM.** ## **PETITIONER/ACCUSED:** **C.C.MOIDU HAJI, AGED 65 YEARS, CHENANVEEDAN HOUSE, KELLOOR P.O, MANANTHAVADY, WAYANAD.** **BY ADVS. SMT.CHITHRA R.SHENOY SRI.T.R.HARI KRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.AJITH MURALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:1872/2019 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the sole accused in Crime No.78/CR/OCWI/TVPM/2010 of the CBCID Headquarters, Thiruvananthapuram. He is being proceeded under Sections 468, 471, 403 and 420 of the IPC. 3. According to the prosecution, the petitioner is a ‘C’ Class contractor. He obtained tender for the patch work of Vellamunda-Thattamala road at Wayanad in the year 2007. After performing the work in a satisfactory manner, he presented a bogus invoice purported to have been issued by the Indian Oil Corporation (IOC), Kochi. In the invoice, it is made mention of that 16 barrels of Bitumen was purchased for the purpose of the work by the petitioner from the IOC. It was later revealed that the invoice which was presented by the petitioner was forged and Crl.MC:1872/2019 3 fabricated. This led to the registration of the crime. After completion of investigation, final report was laid before the jurisdictional court and the same is pending as C.C. No.430 of 2015 on the files of the Judicial First Class Magistrate Court-I, Mananthavady. 4. The learned counsel appearing for the petitioner submitted that the allegations are extremely vague and the prosecution has no case that the petitioner was the person who had forged or fabricated the document. According to the learned counsel, one Rajesh had acted as a mediator between the petitioner and the IOC and he is the person who had entrusted the invoice with the petitioner. The learned counsel would contend that the work was completed by the petitioner to the satisfaction of all concern and in that view of the matter, the continuance of prosecution proceedings is an abuse of process. Finally, she would rely on the decision of the Supreme Court in **State of Haryana v. Bhajan Lal** [(1992) SCC (Cr) 426] and it is contended that this is a fit case warranting exercise of powers under Section 482 of the Code to quash the proceedings. Crl.MC:1872/2019 4 5. Heard the learned Public Prosecutor, who submitted that in a petition under Section 482 of the Cr.P.C., this Court will not be justified in shifting and weighing the material evidence and to quash the proceedings. _Prima facie_ , there are materials pointing to the involvement of the petitioner herein. 6. I have considered the submissions advanced and have perused the materials on record. 7. I have carefully considered the rival contentions. There can be no dispute with the proposition of law enunciated in the judgment relied on by the learned counsel appearing for the petitioner, wherein it has been held that the inherent powers conferred upon the High Court under Section 482 of the Code are wide enough to encompass almost all situations in order to prevent the abuse of process of any court or to otherwise secure the ends of justice. 8. The question, however, is when and under what Crl.MC:1872/2019 5 situation, the High Court should step in and pass appropriate orders in exercise of its jurisdiction under Section 482 of the Code in a criminal trial. In this context, it will be relevant to remind oneself of the principles laid down by the Apex Court in the matter of exercise of powers under Section 482 of the Code. It has been held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation could be sustained. That is the function of the trial Court. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without a full-fledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. It is also settled that, if on taking the allegations and the complaint as they were, without adding or subtracting anything, no offence was made out, then the High Court would Crl.MC:1872/2019 6 be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C. (See **MCD v. Ram Kishan Rohtagi** , [(1983) 1 SCC 1]; **Soundaram N v. P.K. Ponnuraj and Another** [(2014) 1 SCC 616]). I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution or the accused. 9. In the case in hand, the charge sheet has been filed before the court below. The procedure for trial of warrant cases by Magistrates is provided for in Chapter XIX of the Code. Section 238 of the Code specifically provides that at the stage of framing of charge, it is obligatory upon the learned Magistrate to hear the prosecution and the accused and if the learned Magistrate considers the charge to be groundless, he is empowered to discharge the accused after recording his reasons. When alternate and comprehensive remedies are available for the petitioner under the Code, this Court will not be justified in sifting and weighing the materials in a petition filed under Section 482 of the Code. I am of the view that the petitioner has to approach the learned Magistrate and advance his contentions at the appropriate Crl.MC:1872/2019 7 stage. I find no good reason to interfere with the proceedings under Section 482 of the Cr.P.C. The petition will stand dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE Crl.MC:1872/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE NO.I CERTIFIED COPY OF FIR NO.78/CR/OCWI/TVPM/2010 OF CBCID HQRS, THIRUVANANTHAPURAM.** **ANNEXURE NO.II CERTIFIED COPY OF FINAL REPORT IN CRIME NO.78/CR/OCW1/TVPM/20-10 OF CBCID HQRS, THIRUVANANTHAPURAM.** ## **RESPONDENT’S EXHIBITS:-NIL**