Chithranireshkumar and Nireshkumar v. State of Kerala & Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` THURSDAY,THE24[TH]DAYOFAUGUST2023/2NDBHADRA,1945 CRL.MCNO.427OF2021 ``` ``` FIRNO.1202/2020DATED24.11.2020OFBADAKARAPOLICESTATION PETITIONERS/ACCUSEDNO.1AND2: ``` ``` 1CHITHRANIRESHKUMAR AGED46YEARS W/O.NIRESHKUMAR,RAYARANGOTHHOUSE, NADAKKUTHAZHEVATAKARA,KOZHIKODE. 2NIRESHKUMAR AGED48YEARS S/O.RAJAN,RAYARANGOTHHOUSE, NADAKKUTHAZHEVATAKARA,KOZHIKODE. BYADVV.N.RAMESANNAMBISAN ``` ## **`RESPONDENTS/COMPLAINANTS :`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAMPIN682031 2RAJENDRANPILLAI. S/O.NANUPILLAI,AGED44YEARS, RAYARANGOTHHOUSE,NADAKKUTHAZHEVATAKARA, KOZHIKODE,PIN673101 3THEMANAGER(SOUGHTTOBEIMPLEADED) PUNJABNATIONALBANK,BADAGARABRANCH, KOZHIKODEDISTRICT,PIN-673101 BYADVS. I.V.PRAMOD SMT.NEEMATV,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 24.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C. No.427 of 2021 2 ## **ORDER** The petitioners herein are accused Nos.1 and 2 in Crime No.1202 of 2020 of the Badagara Police station. The aforesaid crime has been registered for the offences punishable under Sections 403, 405, 406, 415, 417, 418, 420, 464, 467 and 468 read with Section 34 of the IPC. 2. The short facts of the case are as under: The 2nd respondent herein and the 1st petitioner are the children of certain Nanu Pillai, out of his marriage with Gouri Amma. The 2nd petitioner is the husband of the 1st petitioner. The records disclose that Nanu Pillai had a brother by name Narayana Pillai. Nanu Pillai and Narayana Pillai were the joint owners of a property having an extent of 51 cents situated in resurvey no.60/2 of Badakara village. It is alleged that the 1st petitioner, the party respondent as well as the legal heirs of Narayana Pillai decided to construct a shopping complex by name RNP complex in the aforesaid property after availing a loan from the Kerala Financial Corporation (KFC). It is alleged that out of the amount taken on loan from the KFC, a sum of Rs.3.05 crores was transferred to the Crl.M.C. No.427 of 2021 3 Punjab National Bank. The parties had an understanding that the account would be operated by Gouri, the mother of the 1st petitioner, as well as the party respondent. It is alleged by the party respondent that the petitioners herein had misappropriated the amounts credited to the account of the Punjab National Bank by forging the signature of the mother. 3. Sri. V.N. Ramesan Nambisan, the learned counsel appearing for the petitioners submitted that the initiation of the criminal proceedings is with the sole objective of vexing the petitioners herein, who is none other than the sister as well as the brother-in-law of the complainant. The dispute, according to the learned counsel, is purely civil in nature. He points out that the complaint was lodged after several years of the alleged incident and owing to the aforesaid reason, the prosecution has to be interdicted at the threshold stage itself. It is submitted that the petitioners as well as the party respondent are co-owners of the building and after having withdrawn the amounts, for the purpose of construction of the shopping complex, the complainant cannot turn around and level frivolous accusations. It is further submitted that there are no materials to suggest that there was Crl.M.C. No.427 of 2021 4 fraudulent or dishonest intention and if that be the case, there is no point in subjecting the petitioners to an investigation by the police. Reliance is placed on the law laid down by the Apex Court in **R.P. Kapur vs. State of Punjab** (AIR 1960 SC 866), and in **State of Haryana vs. Bhajan Lal** (1992 SCC (Cr) 426), and it is argued that when the materials suggest that the criminal proceedings is manifestly attempted with mala fides, this Court will be well justified in invoking its powers under Section 482 of the Cr.P.C. and in quashing the proceedings. 4. In response, the learned counsel appearing for the party respondent would refer to the allegations in the crime and it is argued that unless an investigation is carried out by the police, the truth of the allegations would not be revealed. He would point out that the bank records would disclose that the amount was withdrawn without the knowledge or junction of the mother. It is further submitted that immediately after registration of the crime, the petitioners approached this Court levelling unfounded contentions and the investigation as such has been stayed. 5. The learned Public Prosecutor has opposed the Crl.M.C. No.427 of 2021 5 submissions. He would contend that the offenses disclosed in the FIR make out a cognizable offense, and this Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. According to the learned Public Prosecutor, it is only when this Court is fully convinced that the FIR does not disclose the commission of an offense or that the allegations contained in the FIR do not constitute any cognizable offense, or that the prosecution is barred by the law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court that this Court can interfere. 6. I have considered the rival submissions and have gone through the materials made available. 7. It has been well-settled by now that when a plea for quashing a prosecution in its nascent stages is made, this Court is entrusted with the responsibility of ascertaining whether the uncontested allegations outlined in the complaint or the charge constitute an offense. In the exercise of jurisdiction under Section 482 of the Code, this Court is not justified in minutely scrutinizing the materials that are yet to be presented and evaluated in their proper context. Jurisdiction under the Crl.M.C. No.427 of 2021 6 provision must be exercised sparingly, reserving it for exceptional circumstances, and should not be exercised to stifle a legitimate prosecution. At this juncture, only a prima facie case ought to be considered, in accordance with the legal principles enunciated by the Supreme Court in landmark cases such as **R.P. Kapur vs. State of Punjab** (AIR 1960 SC 866), **State of Haryana vs. Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar vs. PP Sharma** (1992 SCC (Cr.) 192), **Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and another** (2005 SCC (Cr.) 293), and more recently in **Neeharika Infrastructure Pvt Ltd v. State of Maharashtra and Others** [2021 SCC Online SC 315]. 8. Upon careful examination of the available materials and evaluation of the records in the factual backdrop of the present case, I am of the view that it would be premature to deduce that no offense has been established against the petitioners at this stage. Upon perusal of the FIR and the complaint which led to the lodging of the same, it becomes evident that specific allegations have been leveled against the petitioners, invoking specific offenses under the Indian Penal Code. This Court is not justified in assessing the appropriateness, veracity, or Crl.M.C. No.427 of 2021 7 accuracy of the allegations mentioned in the charge at this juncture based on the CD statements; rather, these aspects are to be deliberated upon by the trial court at the opportune stage after evaluating the evidence adduced before court. It would be prudent for this Court to abstain from expressing any opinion regarding the merits of the allegations at this stage, so as to prevent any prejudice to either the prosecution or the accused. In that view of the matter, I hold that the petitioners have not made out any case for intervention at this stage. Reserving the right of the petitioners to challenge the final report, this petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C. No.427 of 2021 8 ## **`APPENDIX OF CRL.MC 427/2021`** ``` PETITIONERANNEXURES: ``` |`ANNEXURE `|`1`|`TRUE COPY OF THE FIR NO.1202 `|`OF 2020 DATED`| |---|---|---|---| |||`24.11.2020 OF BADAGARA POLICE `|`STATION.`| |`ANNEXURE `|`2`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`BUILDING`<br>`PERMIT`|| |||`NO.339/12-13 DATED 28-2-2013 `|`ISSUED BY THE`| |||`BADAGARA MUNICIPALITY`|| |`ANNEXURE `|`3`|`TRUE`<br>`COPY`<br>`OF`<br>`RELEVANT`<br>`PAGES`|`OF`<br>`THE`<br>`LOAN`| |||`AGREEMENT`<br>`DATED`<br>`17.9.2015`|`ENTERED`<br>`WITH`| |||`KERALA FINANCIAL CORPORATION.`|| |`ANNEXURE `|`4`|`TRUE`<br>`COPY`<br>`OF`<br>`RELEVANT`<br>`PAGES`<br>`OF`<br>`THE`|| |||`ADDITIONAL`<br>`AGREEMENT`<br>`DATED`|`5.3`<br>`.2018`| |||`ENTERED WITH KERALA FINANCIAL `|`CORPORATION.`| |`ANNEXURE `|`5`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`RECEIPT DATED 1.10.2019`|| |||`GIVEN BY ANITHA FOR AN AMOUNT `|`OF RS. 90.35`| |||`LAKHS.`|| |`ANNEXURE `|`6`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`NOTICE`<br>`NO.REF.`|| |||`TP1/11689/18`<br>`DATED`<br>`25.2.2019`<br>`BY`<br>`THE`|| |||`BADAGARA MUNICIPALITY.`|| |`ANNEXURE `|`7`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`LAWYER`|`NOTICE`<br>`DATED`| |||`18.12.2019 ISSUED BY THE 2ND `|`RESPONDENT TO`| |||`THE`<br>`PETITIONERS`<br>`AND`<br>`HER`<br>`HUSBAND`<br>`VIJAYA`|| |||`KUMAR.`|| |`ANNEXURE `|`8`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`REPLY`<br>`DATED`<br>`21.1.2020`|| |||`SUBMITTED BY THE PETITIONERS.`|| |`ANNEXURE `|`9`|`TRUE PHOTOGRAPHS OF THE RNP COMPLEX.`||