Crl.M.C. No. 2423 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.MC.No. 2423 of 2008() ------------------------CRIME NO.424/98 OF MALAPPURAM POLICE STATION PETITIONER(S): ACCUSED ---------------------- 1. KONNOLA YOUSEF, S/O.K.MOIDEENKUTTY HAJI, DOWNHILL, POST MALAPPURAM. 2. KONNOLA ABDUL SAMAD, S/O.K.MOIDEENKUTTY HAJI, DOWNHILL, POST MALAPPURAM. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM. 3. THE BRANCH MANAGER, MALAPPURAM SERVICE CO-OPERATIVE BANK, MALAPPURAM BRANCH, POST MALAPPURAM. - ADDL. 4. THATTAYIL BUKHARI, S/O.ABDULLA, - MANKADA PALLIPPURAM VALLIKKAPPATTA, MALAPPURAM DISTRICT. ADDL. 5. K.C.MUHAMMED ASSAN, - S/O.ABDUL RAHIMAN, - KUNDAM CHALIL HOUSE, P.O.OORAKAM, KEEZHMURI, VENGARA, MALAPPURAM DISTRICT. (Additional respondent Nos.4 and 5 are impleaded as per order dated 29.07.08 in Crl.M.Appl.No.3868 of 2008) BY PUBLIC PROSECUTOR SRI.S.U.NAZAR ADV. SRI.V.G.ARUN FOR R3 SRI.T.R.HARIKUMAR FOR R3 SRI.S.SHAJI FOR ADDL.R4 & 5 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 2423 of 2008 ------------------------------------------------Dated this the 26[th] day of November, 2008** ## **ORDER** The petitioners are accused 1 and 2 and they face allegation in a crime for offences punishable, inter alia, under Secs.420, 465 and 471 IPC. Some of the offences are not compoundable. The crux of the allegations against the petitioners is that they availed a loan from the 3[rd] respondent – a Co-operative Bank. The loan was availed offering certain sureties who produced their documents as security. Those documents were of the properties of respondents 4 and 5 herein. Those documents were pledged before the bank in the name of the sureties. The loan was advanced and amounts were availed by the accused. There was default in repayment ## **Crl.M.C. No. 2423 of 2008** -: 2 :- and arbitration proceedings were initiated before the authority (R2) under the Kerala Co-operative Societies Act. In the course of that proceedings, it was contended by respondents 4 and 5 that they were not the ones who executed the documents. Some persons had impersonated them and had executed the documents as sureties in their absence. They were not available in India and did not and could not have executed the relevant documents, it was contended. 2. Respondent No.2, on being satisfied about the allegations raised, filed a complaint before the police. The crux of the complaint is that the bank has been defrauded and the funds have been siphoned out from the coffers of the Bank fraudulently and dishonestly. The petitioners have now come before this Court. It is submitted that the 3[rd] respondent – Bank, or respondents 4 and 5 – the alleged sureties, have no grievance now and they have compounded the offences allegedly committed by the petitioners. Inasmuch as they have compounded the offences, the powers under Sec.482 Cr.P.C. may be invoked and the ## **Crl.M.C. No. 2423 of 2008** -: 3 :- proceedings may be brought to premature termination, contends the learned counsel for the petitioners. 3. Respondents 3, 4 and 5 have entered appearance and have confirmed that they have no objection against the quashing of the proceedings accepting the composition. 4. In the nature of the allegations raised, it was felt by this Court that the response of the 2[nd] respondent must be ascertained. The learned Public Prosecutor, after taking instructions, reports that the 2[nd] respondent is not willing to compound the proceedings and to get the proceedings quashed. The learned Public Prosecutor submits that this cannot be reckoned as an offence which is personal and private between the petitioners herein and respondents 3 to 5. The Bank functions under the Kerala Co-operative Societies Act. The offence has been committed in respect of the affairs of the Co-operative Bank. Larger issues are involved. Money belonging to the members of the Cooperative Society have been fraudulently siphoned out from the coffers of the Bank by the culpable acts of the petitioners and respondents 3 to 5. Serious view is bound ## **Crl.M.C. No. 2423 of 2008** -: 4 :- to be taken. In any view of the matter, it cannot be assumed that the dispute is one which is private and personal between the parties. The 2[nd] respondent has a duty as an official of the Co-operative Societies to safeguard the true interests of the Co-operative Bank including the 3[rd] respondent and the fact that the 3[rd] respondent has compounded the non-compoundable offences may not be reckoned as a sufficient justification to quash the prosecution for the offences punishable under Secs.465 and 471 IPC. The learned Public Prosecutor submits that, in these circumstances, the invocation of the jurisdiction under Sec.482 Cr.P.C. is totally unjustified. 5. I find merit in the opposition raised by the learned Public Prosecutor on behalf of the State and the 2[nd] respondent – the official of the Co-operative Department. I am satisfied in the nature of the allegations that the mere fact that the petitioners as also respondents 3 to 5 have chosen to come to terms is not sufficient reason to accept the composition and invoke the jurisdiction under Sec.482 Cr.P.C. I find merit in the contention that the Bank and its ## **Crl.M.C. No. 2423 of 2008** -: 5 :- officials if they were knowingly parties to the fraud may themselves be liable to face prosecutions as they may have committed the dishonest acts in respect of the affairs of the Bank. It is not necessary for me to delve deeper into that aspect. Suffice it to say that I am not persuaded to invoke the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. 6. The learned counsel for the petitioners submits that the investigation though commenced as early as in 1998, final report has not been filed. I am satisfied that the Investigating Officer must complete the investigation as expeditiously as possible. 7. With the above observations, this Crl.M.C. is dismissed. ## **Sd/-** ## **(R. BASANT, JUDGE)** ## **Nan/** ## **//true copy//** ## **P.S. to Judge** **Crl.M.C. No. 2423 of 2008** -: 6 :- ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 2423 of 2008 ------------------------------------------------Dated this the 25[th] day of September, 2008** ## **ORDER** The prayer is to quash the proceedings invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. as enabled by the dictum in **Madhan Mohan Abbot v. State of Punjab** (2008 AIR SCW 2287). The learned counsel for the respondent/complainant has entered appearance and confirms settlement/composition. Notice given and the learned Public Prosecutor shall take instructions. Call on 7/10/08. The learned Public Prosecutor undertakes that the petitioners shall not be arrested till that date. The said undertaking is accepted. ## **(R. BASANT, JUDGE)** **Nan/** **Crl.M.C. No. 2423 of 2008** -: 7 :-