## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936**
## **CRL.MC.NO. 1203 OF 2014 (B)**
**--------------------------------------[TO QUASH THE PROCEEDINGS DTD. 22/01/2014 IN C.C. NO.592/2007 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT - (ECONOMIC OFFENCES), ERNAKULAM]**
**............**
## **PETITIONER/CW 21:**
**-----------------------------**
**DEVESH MATHUR, AGED 46 YEARS, CHIEF OPERATING OFFICER, THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD., 52/60, MAHATHMA GANDHI ROAD, MUMBAI-400 001.**
**BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS.SRI.LAL K.JOSEPH, SRI.JOJO GEORGE, SRI.SHIRAZ BAVA .V.S.**
## **RESPONDENTS/COMPLAINANT:**
**----------------------------------------------**
## **1. STATE OF KERALA,**
**REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.**
**2. C.K.SASIDHARAN NAIR,**
**ASSISTANT COMMISSIONER, CUSTOMS PREVENTION DIVISION, KOZHIKODE – 678 017.**
## **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH.**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**Prv.**
**CRL.M.C. NO.1203/2014-B:**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:**
**ANNEXURE A1 : COPY OF THE COMMUNICATION DTD.7.6.2003 SIGNED BY THE PETITIONER.**
**ANNEXURE A1(A): COPY OF THE COMMUNICATION DTD.11.6.2003 SIGNED BY THE PETITIONER. ANNEXURE A2 : COPIES OF THE COMMUNICATION DTD.19.11.2013. ANNEXURE A3 : COPIES OF THE COMMUNICATION DTD.19.11.2013. ANNEXURE A4 : COPY OF THE MEMO DTD.18.12.2013. ANNEXURE A5 : CERTIFIED COPY OF THE ORDER DTD.22.1.2014 IN CC NO.592/07 BEFORE THE ADDL. CHIEF JUDICIAL - MAGISTRATE COURT, ERNAKULAM.**
## **RESPONDENTS' ANNEXURES: NIL.**
**//TRUE COPY//**
## **P.A. TO JUDGE.**
**Prv.**
## **K. RAMAKRISHNAN, J.**
................................................. Crl.M.C.No.1203 of 2014 .................................................. Dated this the 24[th] day of March, 2014.
## **O R D E R**
This petition is filed by the petitioner, who is a witness in C.C.No.592/2007 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, to quash the proceedings initiated by the Magistrate under Section 340 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and also issuance of warrant against the petitioner under Section 482 of the Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is charge witness No.21 in C.C.No.592/2007 on the file of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. As he was in Hongkong, on 7.1.2014 and 22.1.2014 he applied through his lawyer to condone his absence. When the matter came up before the lower court on those days, the counsel for the petitioner sought time for petitioner's appearance. The Magistrate allowed the application on 7.1.2014, but rejected the application on 22.1.2014. Thereafter passed Annexure-A5 order registering Crl.M.P.No.377/2014 against the petitioner
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ordering enquiry under Section 340 of the Code of Criminal Procedure for the offence under Section 174 of the Indian Penal Code. The order passed by the court below is illegal. No enquiry has been conducted as contemplated under Section 340 of the Code before initiating the proceedings. So the petitioner has no other option except to approach this Court with the following reliefs:
i. Call for the records in C.C.No.592/2007 on the file of Additional Chief Judicial Magistrate Court (Econmic Offences,) Ernakulam and set aside Annexure A5 order
initiating proceedings registered as Crl.M.P.No.377/2014 against the petitioner under section 340 Cr.P.C for inquiry of offence under section 174 of IPC.
ii. Set aside the order in issuing the bailable warrant issued against the petitioner.
iii. To stay all further proceedings in C.C.No.592/2007 on the file of Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam pursuant to A5 order dated 22.1.2014 and allow the petitioner to appear on 24.2.2014 without the threat of prosecution as per Annexure A5 order in the interest of justice,
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iv. Direct the additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam to record the evidence of the petitioner i.e. CW 21 on the next date of hearing on 24.2.2014.
v. Such other order that this Honourable Court may deem fit to give effect to any order passed under the Code of Criminal Procedure, to prevent abuse of process of any Court or otherwise to secure ends of justice.
3. Heard the counsel for the petitioner and the learned Public Prosecutor, who is appearing for respondents 1 and 2. Earlier this Court has passed the following order:
“The magistrate is directed to send a report regarding the things transpired, which resulted in initiating proceedings under 340 of the Code of Criminal Procedure against the petitioner and also send a report about the participation of the witness on 24.02.2014 after 24.02.2014, so as to reach this Court within a week from that date”.
4. On the basis of the direction of this Court, the learned Additional Chief Judicial Magistrate sent a report which prompted the Magistrate to initiate the proceedings and the Magistrate has sent a report dated 22.2. 2014 regarding the
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## same which reads as follows:
“On 29.10.2014, summons was ordered to CW 21 Devesh Mathur for appearance on 27.11.2013. CW21 did not appear on 27.11.2013 and hence bailable warrant was ordered to CW21 for his appearance examination on 07.01.2014. The case was advanced on 04.12.2013 on application on behalf of CW21, namely Devesh Mathur and on his application, the bailable warrant issued to him was recalled with a direction that he shall appear on 7..1.2014. On 07.01.2014, CW21 was absent and he applied and case was posted to 22.1.2014 as the last chance for CW21 to appear. On 22.01.2014, CW 21 was absent and Crl.M.P.No.377/2014 was registered against CW21 for an enquiry under S.340 of Cr.P.C regarding the offence punishable under section 174 of IPC. And bailable warrant was ordered to be repeated against CW 21 for his appearance on 24.2.2014.”
5. Thereafter another report was also sent by the Additional Chief Judicial Magistrate (E.O), Ernakulam dated 26.2.2014 which reads as follows:
“In compliance with order of Hon'ble High Court,
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respectfully report that CW21 Devesh Mathur in the above case had appeared in the court on 24.2.2014 and he was examined as a prosecution witness”.
6. It is clear from the nature of things narrated in the report, it cannot be said that the Magistrate was wrong in issuing bailable warrant to procure the presence of the petitioner, who has to be examined in the case which is of the year 2007. But at the same time, it cannot be said that non appearance is willful which warrants an action under section 174 of the Indian Penal Code because the witness was represented by the counsel and he made an application for exempting the presence of the petitioner seeking adjournment to post the case for a convenient date for giving evidence. It was not a case where the witness does not want to appear before court and give evidence so as to treat his act as willful fault or deliberate act of disobedience by the witness. Further, subsequent report of the Magistrate shows that as directed by this Court, the witness appeared on 24.2.2014 and his examination was completed. So, under the circumstances, this Court feels that there is no necessity to proceed against the
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petitioner by initiating proceedings under Section 340 of the Code. So the order of the learned Magistrate namely AnnexureA5 directing to initiate proceedings against the petitioner under section 340 of the Code is set aside and the Crl.M.P.No.377/2014 registered against the petitioner as per that order is quashed.
With above directions and observations, this petition is disposed of.
Office is directed to communicate this order to the concerned Magistrate immediately.
**Sd/K. RAMAKRISHNAN, JUDGE.**
cl
/true copy/
P.S to Judge
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