Crl.M.C. No.2985/2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** **CRL.MC NO. 2985 OF 2021** **AGAINST CC 535/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-II,THAMARASSERY** **CRIME NO.422/2017 OF KODENCHERY POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO.2:** **JOSEPH .K.V AGED 71 YEARS, S/O.VARKEY, KUMPALOLIL WHITE HOUSE, NADAKKAVU WEST, KOZHIKODE 673 011** **BY ADVS. M.M.DEEPA APARNA NAIR** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031** - **2 STATION HOUSE OFFICER KODENCHERY POLICE STATION, KOZHIKODE DISTRICT PIN 673 580** - **3 KOZHIKODE JILLA CO-OPERATIVE RUBBER MARKETING SOCIETY LTD. REP. BY ITS MANAGING DIRECTOR, NO.F 1879, CHEROOTY ROAD, KOZHIKODE PIN 673 001** **SRI. NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION** **ON 19.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-:2:-** Crl.M.C. No.2985/21 ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C. No.2985 of 2021** **---------------------------------** Dated this the 19[th] day of February, 2024 ## **ORDER** Petitioner is the second accused in C.C. No.535 of 2019 on the files of the Judicial Magistrate of First Class-II, Thamarassery, which arises out of Crime No.422/2017 of Kodencherry Police Station. The offences alleged against the petitioner and other accused are under sections 408, 416, 420, 464, 471 and 477A read with section 34 of the Indian Penal Code, 1860 (for short 'IPC'). 2. As per the final report, the first accused had, during the period from 11.04.2005 to 27.01.2007, while he was a clerk at the purchasing depot of the Kozhikode District Co-operative Rubber Marketing Society, cheated the defacto complainant by falsifying the accounts and forged various cash related records with the help of other accused and caused a loss of Rs.2,10,387/- to the defacto complainant and thereby committed the offences alleged. Crl.M.C. No.2985/21 **-:3:-** 3. Petitioner was the Managing Director of the defacto complainant from 08.07.1993 to 31.01.2007 till he attained superannuation. Though the first accused is alleged to be the main culprit behind the falsification of accounts and cheating, petitioner has been roped in the crime since the first accused is alleged to have committed the offence with the knowledge and assistance of the petitioner as well. 4. Smt.M.M.Deepa, the learned counsel for the petitioner contended that none of the prosecution materials indicate any involvement of the petitioner. Other than the fact that petitioner was the Managing Director during a portion of the relevant period when the alleged misappropriation and falsification of accounts took place, no overt act or even any indirect act could be alleged by the prosecution against the petitioner. It was submitted that petitioner had retired from service with a blemishless record and that the continuance of the prosecution against him is not only traumatic but is also a blur on his career. Learned counsel asserted that there is nothing to indicate any benefit of any nature derived by the petitioner for any of the actions committed by the first accused and therefore the inherent jurisdiction under section 482 Cr.P.C. ought to be Crl.M.C. No.2985/21 **-:4:-** invoked to quash the proceedings against the petitioner as it is an abuse of the process of court. 5. Sri.Noushad K.A., the learned Public Prosecutor on the other hand contended that the petitioner was the Managing Director who was in charge of the society during the relevant period when the first accused had committed the offences. It was also submitted that it was only because of the irresponsible and careless approach of the administration which was headed by the petitioner that the first accused could commit the offences and that the said assistance is sufficient to rope him in the crime. The Public Prosecutor further submitted that whether the petitioner had any actual involvement in the crime or not, is a matter that can be decided only after trial and hence it is too premature a stage to quash the whole proceedings. 6. I have considered the rival contentions and have also perused the case diary. 7. Petitioner was admittedly the Managing Director of the society till 31.01.2007. Though a thorough investigation was conducted, no material to implicate the petitioner with any offence has been unearthed by the investigation. There is also no material to show that petitioner had received any benefit out Crl.M.C. No.2985/21 **-:5:-** of the misappropriation and falsification of accounts committed by the first accused. There is nothing to indicate that the petitioner had conspired with the first accused nor is there any charge for such an offence. There is also nothing to infer that the accused had any common intention to commit the offences. 8. Indian Penal Code, 1860 does not contemplate vicarious liability in the commission of offences. Merely because a person is a Managing Director of a society, he cannot be mulcted with criminal liability for every act of his employees. If there was any negligence or carelessness in identifying the commission of crime, the same cannot be a reason to proceed against him criminally, but may only be a reason for initiating departmental proceedings. 9. In the instant case, the petitioner has been arrayed as an accused only on the basis of section 34 of the IPC. Though the common intention contemplated under section 34 is a question of fact, still, there must be some material collected by the prosecution to show that there is a reasonable chance of an inference being made regarding common intention. The principle of constructive criminal liability of offenders made possible through section 34 IPC must however require some material Crl.M.C. No.2985/21 ## **-:6:-** from which the said inference can be gathered. Existence of a relationship in the form of a Managing Director and an employee is not sufficient to create such an inference. As section 34 IPC is not creating a distinct offence but only a rule of evidence, I am of the view that an element of participation in the crime is required even to assume a common intention shared by the parties. In the instant case, the prosecution has miserably failed to produce any material to implicate the petitioner for any of the offences or to even remotely connect him with the crime committed by the first accused. 10. In this context, it is appropriate to notice that the crime was registered only on 06.12.2017 while the petitioner had retired on 31.01.2007, which itself indicates that for almost 10 years after the retirement of the petitioner, nobody, not even those Managing Directors who held office during those periods, could identify the crime committed by the first accused. In such a view of the mater, this Court is of the opinion that the prosecution against the petitioner is an abuse of the process of court. 11. In the decision in **State of Haryana and Others v. Bhajan Lal and Others** [(1992) Suppl 1 SCC 335] the Supreme Crl.M.C. No.2985/21 ## **-:7:-** Court has observed that 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, the court will be justified in quashing the proceedings. In another recent judgment in **Sunita Palita and** **Others v. Panchami Stone Quarry** [(2022) 10 SCC 152], it was held that “ _while it is true that inherent jurisdiction under S.482 should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specially laid down in the Section, the Court is duty bound to exercise its jurisdiction under S.482 of the Cr.P.C. when the exercise of such power is justified by the tests laid down in the said Section. Jurisdiction under S.482 of the Cr.P.C. must be exercised if the interest of justice so requires.”_ 12. Bearing in mind the above principles and having regard to the lack of any material to connect the petitioner with any of the offences alleged, the prosecution as against the petitioner, is an abuse of the process of court and is liable to be set aside. Accordingly, all proceedings against the petitioner, the second accused in C.C. No.535 of 2019 on the files of the Judicial Crl.M.C. No.2985/21 **-:8:-** Magistrate of First Class-II, Thamarassery, are hereby quashed. It is clarified that the quashing of the proceedings is confined only in respect of the petitioner and not with respect to the other accused in the above referred case. Crl.M.C. is allowed as above. **Sd/-** **BECHU KURIAN THOMAS** **JUDGE** vps **-:9:-** Crl.M.C. No.2985/21 ## **APPENDIX OF CRL.MC 2985/2021** **PETITIONER ANNEXURES Annexure A TRUE COPY OF THE AWARD DATED 24.6.2016 AND MADE IN ARC NO.891/2014 ON THE FILE OF THE COURT OF ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOZHIKODE Annexure B TRUE COPY OF THE AWARD DATED 13.11.2019 AND MADE IN ARC NO.891/2014 ON THE FILE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, KOZHIKODE Annexure C CERTIFIED COPY OF THE FIR IN CRIME NO.422/2017 DATED 6.12.2017 OF KODENCHERY POLICE STATION ALONG WITH COMPLAINT SUBMITTED BY THE MANAGING DIRECTOR OF 3RD RESPONDENT SOCIETY Annexure D CERTIFIED COPY OF THE FINAL REPORT DATED 4.7.2019 IN CRIME NO.422/2017 OF KODENCHERY POLICE STATION. Annexure-E TRUE COPY OF THE SPLIT CHARGE SHEET IN C.C NO. 535 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, THAMARASSERY**