Crl.M.C No. 8383 of 2018 (Muraleedharan v. State of Kerala and MURALEEDHARAN)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945`** ## **`CRL.MC NO. 8383 OF 2018`** ``` CC755/2018OFJUDICIALMAGISTRATEOFFIRSTCLASS -II,PALAKKAD ``` ## **`PETITIONER/1ST ACCUSED:`** ``` C.L.MURALEEDHARAN, AGED55YEARS S/O.LAKSHMANAN,CHOLAYILHOUSE,MANNOOR, PALAKKADDISTRICT BYADVS. K.MOHANAKANNAN SMT.T.V.NEEMA ``` ## **`RESPONDENTS/STATE AND DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALA, REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM, KOCHI-682031 2MURALEEDHARAN, AGED57YEARS SAROJALAYAM,KONIKAZHIP.O.,PULAPATTA, PALAKKAD-678632 BYADVS. SRI.SAJANVARGHEESEK. SRI.LIJU.M.P ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON15.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` Crl.M.C No.8383 of 2018 2 ## **ORDER** The petitioner herein is the 1[st] accused in C.C No.755 of 2018 on the file of the Judicial Magistrate of the First Class-II, Palakkad. In the aforesaid case, he is accused of having committed offences punishable under Sections 120B, 417, 420 read with Section 34 IPC. 2. It appears from the records that the 2nd respondent herein filed the complaint that led to the registration of the crime. In the complaint, the 2nd respondent, a retired army personnel, alleged that the petitioner had approached him and offered to arrange admission for his son in the Pariyaram Medical College, Kannur. The second respondent paid an advance of Rs.25,000/-. The 1st accused then contacted the 2nd respondent and informed him that a seat had been arranged and that a sum of Rs. 10 lakhs was to be paid to the college. The 2nd respondent paid Rs.10 lakhs to accused Nos.2 and 3 at the instance of the 1st accused. He then paid a further sum of Rs.5 lakhs in two installments. The accused then demanded a further sum of Rs. 10 lakhs, which the 2nd respondent paid on 6 August 2016 and 5 September 2016. The 2nd respondent alleged that the accused had assured him that a seat had been secured in the Amrita Medical College, but it was later revealed that the admission was in the NRI Crl.M.C No.8383 of 2018 3 quota and could not be pursued. The accused then arranged admission in the Malabar Medical College, but did not pay the required admission fee of Rs. 25 lakhs. The 2nd respondent was again asked to pay Rs. 10 lakhs on 24 September 2016. On these allegations, the 2nd respondent filed a complaint alleging that the petitioner had intentionally deceived him and that he was made to part with a sum of Rs. 19.5 lakhs. On the basis of the complaint, Crime No.90 of 2017 was registered at the Mankara Police Station. After investigation, a final report was filed before the learned Magistrate. 3. The learned counsel appearing for the petitioner submitted that it cannot be believed that the party respondent being a retired military personnel, willingly handed over a sum of Rs.40 lakhs without acknowledgment. It is further submitted that the law does not permit a transaction of the nature alleged in the complaint. It is further submitted that no amounts were handed over to the petitioner by the de facto complainant. 4. The learned counsel for the de facto complainant submitted that the assertions made by the learned counsel appearing for the petitioner cannot be accepted. According to the learned counsel, cogent and acceptable materials were placed before the police by the de facto Crl.M.C No.8383 of 2018 4 complainant to substantiate his contention that substantial amounts were transferred to the petitioner. Intention to deceive at the inception itself is self-evident from the sequence of events. 5. The learned Public Prosecutor has opposed the submissions. It is submitted that the materials collected by the prosecution clearly substantiate the prosecution's allegations. It is further submitted that this Court will not be justified in embarking upon an enquiry as to whether the evidence in question is reliable or not or whether, on a reasonable appreciation of it, the accusation would or would not be sustained. According to the learned Public Prosecutor, this is not a fit case wherein this Court will be justified in invoking the extraordinary jurisdiction of this Court to short-circuit the prosecution. 6. I have considered the submissions advanced and carefully gone through the records. The specific case of the de facto complainant is that he was induced to believe that the petitioner and two others would secure admission for the son of the de facto complainant by legal means. By this inducement, he was made to part with substantial amounts of money. He also alleges that, despite payment of the amount, the accused failed to provide him with the admission. The specific contention of the petitioner is that the transaction is not legal and therefore, the criminal Crl.M.C No.8383 of 2018 5 proceeding is an abuse of process. It appears from the records that the police have conducted a detailed investigation and submitted a final report before the learned Magistrate. The petitioner has not produced copies of the witness statements before this Court along with Annexure-A3 final report. The question now is whether this Court would be justified in interfering with the criminal proceedings in the facts and circumstances of the instant case. 7. In **State of A.P. v. Golconda Linga Swamy** [2004(6) SCC 522], the Apex Court had occasion to succinctly lay down the principles that should guide the court while considering a petition under Section 482 of the ## Cr.P.C. Paragraph Nos.5 to 8 of the judgment reads as under: Exercise of power under S.482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon Crl.M.C No.8383 of 2018 6 them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. Ail courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. **6.** In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : Crl.M.C No.8383 of 2018 7 (AIR p. 869, para 6) - (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; - (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; - (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. **7.** In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When 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 accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash Crl.M.C No.8383 of 2018 8 vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102) “ 102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any Crl.M.C No.8383 of 2018 9 offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” **8.** As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this Crl.M.C No.8383 of 2018 10 power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in Crl.M.C No.8383 of 2018 11 conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259] and State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89]. 8. It is no more res integra that the exercise of power under S.482 CrPC to quash a criminal proceeding is only when an allegation made Crl.M.C No.8383 of 2018 12 in the FIR or the charge sheet does not constitute the ingredients of the offences alleged. Interference by the High Court under S.482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under S.482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offense alleged against the accused, the Court cannot quash a criminal proceeding (see **Rajeev Kourav v. Baisahab and Ors[1]** . The observations and directions issued by the Hon’ble Supreme Court in **Neeharika Infrastructure Pvt. Ltd. M/s. v. State of Maharashtra and Ors[2]** is also instructive. 9. In the case on hand, prima facie, the materials suggest the involvement of the petitioner. In that view of the matter, this Court would not be justified in embarking upon a roving inquiry whether the evidence in question is reliable or not or whether, on a reasonable appreciation of it, the accusation would or would not be sustained. That is the function of the > 1 [2020 (2) KLJ 463] > 2 [AIR 2021 SC 1918] Crl.M.C No.8383 of 2018 13 trial judge. Even the allegation of mala fides against the informant is of no consequence and cannot by itself be the basis for quashing the proceedings. The petitioner has no case that the materials collected by the investigating officer, which has found a place in the final report, would not constitute the ingredients of the offense alleged against him. The contentions raised by the petitioner are to be raised before the Trial court at the appropriate stage. In that view of the matter, I find no reason to quash the criminal proceedings as prayed for in this petition. Reserving the right of the petitioner to raise his contentions at the appropriate stage before the trial court, this petition is dismissed. If any application for discharge is filed by the petitioner, the same shall be considered untrammeled by any of the observations above. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.8383 of 2018 14 ## **`APPENDIX OF CRL.MC 8383/2018`** ``` PETITIONER’SANNEXURES: ``` ``` ANNEXUREA1TRUECOPYOFTHECOMPLAINTFILEDBYTHE2ND RESPONDENTDEFACTOCOMPLAINANTBEFORETHE JUDICIAL1STCLASSMAGISTRATEII,PALAKKAD ``` ``` ANNEXUREA2TRUECOPYOFTHEFIRINCRIMENO.90/2017OF MANKARAPOLICESTATION ``` ``` ANNEXUREA3TRUECOPYOFTHEFINALREPORTINCRIMENO. 90/2017OFTHEJUDICIALFIRSTCLASS MAGISTRATEII,PALAKKAD ``` ``` ANNEXUREA4TRUECOPYOFTHEORDERINBANO.1990/2017 DATED31.5.2018 ```