Dr. P. Sreekumar v. Mohan Prasad and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936** **Crl.MC.No. 1732 of 2004 (B)** **----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 28/2004 of CHIEF JUDL.MAGISTRATE, ERNAKULAM** **PETITIONER/ACCUSED NO.2:** **------------------------** **DR.P. SREEKUMAR, SABARIGIRI, CHITTOOR ROAD, KOCHI-16.** **BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA** **RESPONDENT(S)/COMPLAINANT/STATE:** **--------------------------------** **1. MOHAN PRASAD, ATULYA, B.T.S ROAD, EDAPPALLY, COCHIN-682 024.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. VIJU THOMAS (Sr.) R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2705-2014, ALONG WITH CRMC. 2641/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1732 of 2004 (B)** ## **APPENDIX:** ## **PETITIONER'S ANNEXURES:** |**ANNEXURE A1:**|**TURE COPY OF THE LETTER OF THE 1ST ACCUSED IN**| |---|---| ||**FAVOUR OF THE 2ND ACCUSED DATED 1.5.2001.**| |**ANNEXURE A2:**|**TRUE COPY OF THE LETTER DATED 6.7.2001 GIVEN BY THE**| ||**IST ACCUSED.**| |**ANNEXURE A3:**|**TRUE COPY OF THE DECISION OF THE GOVERNING COUNCIL**| ||**RECORDED ON 1.8.2001.**| |**ANNEXURE A4:**|**TRUE COPY OF THE RESOLUTION OF HE GOVERNING COUNCIL**| ||**DATED 29.8.2001.**| |**ANNEXURE A5:**|**TRUE COPY OF THE REFER REPORT FILED BY THE POLICE**| ||**DATED 6.2.2003.**| |**ANNEXURE A6:**|**TRUE COPY OF THE COMPLAINT IN C.C.No. 28 OF 2004 OF**| ||**THE CHIEF JUDICIAL MAGISTRATE ERNAKULAM.**| |**ANNEXURE A7:**|**TRUE COPY OF THE SUMMONS RECEIVED BY THE**| ||**PETITIONER.**| |**ANNEXURE A8:**|**TRUE COPY OF THE WITHDRAWAL SLIP OF FEDERAL BANK**| ||**LTD. NO. 057218 DATED 31.10.2000.**| |**ANNEXURE A9:**|**TRUE COPY OF THE WITHDRAWAL SLIP OF FEDERAL BANK**| ||**LTD. NO. 530220 DATED NIL.**| |**ANNEXURES PRODUCED ALONG WITH CRL.MA 12938 OF 2004**|| |**ANNEXURE A8:**|**TRUE COPY OF LETTER DATED 16.11.2000 TO THE MANAGER**| ||**FEDERAL BANK LTD.**| |**ANNEXURE A8(a): TRUE COPY OF THE WITHDRAWAL FORM DATED 31.10.2000.**|| |**ANNEXURE A9:**|**TRUE COPY OF LETTER DATED 16.4.2001 TO THE MANAGER,**| ||**FEDERAL BANK LTD.**| |**ANNEXURE A9(a): TRUE COPY OF THE WITHDRAWAL FORM.**|| |**RESPONDENTS' ANNEXURES**<br>**:**|| |**ANNEXURE B1:**|**COPY OF REPORT OF ARUN VARMA, ONE OF THE TRUSTEES**| ||**OF THE VIDYODAYA TRUST, STATING THE DETAILS OF THE**| ||**AMOUNTS MISAPPROPRIATED BY HIM FROM THE FUNDS OF**| ||**THE TRUST AND COPY GIVEN TO THE 1ST RESPONDENT IN**| ||**CRL.MC. ON 9.8.2001.**| |**ANNEXURE B2:**|**COPY OF REPORT DATED 1.8.2001 SUBMITTED BY THE **| ||**PETITIONER IN THE CRL.MC. ON THE FINANCIAL**| ||**IRREGULARITIES IN THE FUNDS OF THE VIDYODAYA TRUST**| ||**COMMITTED BY MR. ARUN VARMA, ONE OF THE TRUSTEES OF**| ||**THE TRUST.**| |**ANNEXURE B3:**|**COPY OF A REPORT DATED 3.8.2001 SUBMITTED BY the**| ||**MANAGER, ADMINISTRATION, LT. COL. TAM ABRAHAM TO**| ||**THE PETITIONER IN THE CRL.MC RELATING TO THE**| ||**FINANCIAL DISCREPANCY BY ONE OF THE TRUSTEES OF THE**| ||**TRUST, MR. ARUN VARMA.**| ## **Crl.MC.No. 1732 of 2004 (B) :2:** |**ANNEXURE B4:**|**COPY OF REPORT DATED 6.8.2001 SUBMITTED BY**| |---|---| ||**MR.YEGNESWARAN NV, ACCOUNTANT TO THE PETITIONER IN**| ||**THE ABOVE CRL.MC AND COPY GIVEN TO THE 1ST**| ||**RESPONDENT ON 9.8.2001.**| |**ANNEXURE B5:**|**COPY OF NOTICE NO.VT/GCM/08/47/01 DATED 24.9.2001**| ||**ISSUED TO THE 1ST RESPONDENT BY THE PETITIONER IN**| ||**THE CRLMC INVITING FOR THE MEETING HELD ON**| ||**2.10.2001.**| |**ANNEXURE B6:**|**COPY OF TRUST DEED OF THE VIDYODAYA TRUST DATED**| ||**23.4.1990 REGISTERED AS DOCUMENT NO.300/1990 OF THE**| ||**ERNAKULAM SUB REGISTRY.**| |**ANNEXURE B7:**|**COPY OF NOTICE DATED 31.7.2000 ISSUED TO THE 1ST**| ||**RESPONDENT BY THE PETITIONER IN THE CRL.MC.**| |**ANNEXURE B8:**|**CPOY OF NOTICE DATED 1.11.2000 ISSUED TO THE 1ST**| ||**RESPONDENT BY THE PETITIONER IN THE CRL.MC.**| |**ANNEXURE B9:**|**COPY OF NOTICE DATED 15.1.2001 ISSUED TO THE 1ST**| ||**RESPONDENT BY THE PETITIONER IN THE CRL.MC.**| |**ANNEXURE B10:**|**COPY OF NOTICE DATED 10.4.2001 ISSUED TO THE 1ST**| ||**RESPONDENT BY THE PETITIONER IN THE CRL.MC.**| |**ANNEXURE B11:**|**COPY OF NOTICE DATED 25.6.2001 ISSUED TO THE 1ST**| ||**RESPONDENT BY THE PETITIONER IN THE CRL.MC.**| ## **TRUE COPY** **P.A.TO JUDGE.** ## **KP** ## **P.D. RAJAN, J.** ======================== **==> picture [184 x 43] intentionally omitted <==** -------------------------------------------Dated this the 27[th] day of May, 2014 ## **ORDER** Petitioners in Crl.M.C. No. 1732/04 and 2641/07 are first and second accused in C.C 28 of 2004 on the file of the Chief Judicial Magistrate, Ernakulam. The petitioner in Crl.M.C. 2641 of 2007 is the sole accused in Crime No. 5/2002 of Ernakulam Town North Police Station which is pending as C.C No. 2682/02 on the file of Judicial First Class Magistrate Court II, Ernakulam and the first accused in Crime No. 817/2001 of Central Police Station, Ernakulam which is pending as C.C. No. 28/2004 on the file of the Chief Judicial Magistrate, Ernakulam. ## **Crl.M.C No. 1732 of 2004** 2. The second accused in C.C. 28/04 has filed this petition to quash Annexure A6 complaint pending before the Chief Judicial Magistrate's Court, Ernakulam by invoking Section 482 of Code of Criminal Procedure. The above complaint was filed by one Mohan Prasad, who is the first respondent in this petition alleging Crl.M.C Nos. 1732/04 & 2641/07 -2- offences punishable under Sections 408, 409, 420, 467, 468, 476 and 477 A read with Section 34 of Indian Penal Code. The petitioner and first respondent are the trustees of a public Trust by name Vidyodaya Trust having its office at S.N. Junction Palarivattom. The Trust came into existence on 23.4.1990 and registered as No. 300/90 of the SRO, Ernakulam. 3. According to the petitioner, four out of 12 trustees got enimical towards the Trust in the year 1999 and thus the litigation started. First accused in C.C. 28/2004 (petitioner in Crl.M.C No. 2641 of 2007) was the Treasurer and one of the Trustees and from 2000 onwards he was in possession and control of the finance. He misappropriated about 40 lakhs by₹ forging the signature of the Executive Trustee, i.e., the petitioner herein. The petitioner came to know about this illegal act only on 6.7.2001 when Mr. Arun Varma confessed the guilt before him. The Governing Council resolved to take criminal action against the Treasurer and authorised the Executive Trustee to initiate criminal proceedings. Even though the complainant was a signatory to the resolution and other proceedings, he filed a criminal complaint against the Treasurer as first accused and the Crl.M.C Nos. 1732/04 & 2641/07 -3- Executive Trustee as the second accused. The police made investigation and referred the case against the Executive Trustee realising that the petitioner has no complicity with the crime. Subsequently the petitioner was falsely implicated in C.C 28/2004 by filing separate private complaint due to vengeance against him. The petitioner also filed a complaint which led to C.C.No. 2682/2002 pending before the Judicial First Class Magistrate Court - II, Ernakulam. The Chief Judicial Magistrate took cognizance of the offence against the petitioner and another person and proceeded with trial. In the said circumstance the petitioner approached this Court to quash Annexure A6 complaint against him. ## **Crl.M.C 2641 of 2007** . 4. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure III final report in Crime No. 5/2002 of Ernakulam Town North Police Station which is pending as CC No. 2682/2002 on the file of JFCM-II, Ernakulam. The above case was registered on the basis of a complaint filed by one Dr. Sreekumar (who is the petitioner in Crl.M.C. No. 1732 of 2004/second accused in CC 28 of 2004) before the Chief Crl.M.C Nos. 1732/04 & 2641/07 -4- Judicial Magistrate Court-II, Ernakulam, which was forwarded to Ernakulam Town North Police Station for investigation under Section 156(3) Code of Criminal Procedure. After completing the investigation, Annexure III final report was filed before the JFCMII, Ernakulam. The petitioner contended that two cases are pending against him in two Courts alleging the same set of facts and same offence. The de-facto complainant in Crime No.5/2002 is also an accused in C.C.No. 28/2004. Hence if trial is proceeded in these two cases, he has to face two trial for the same offence which is in violation of fundamental rights. So, he prays for invoking the inherent jurisdiction to quash Annexure II FIR, Annexure III charge sheet and all its consequent proceedings pending as C.C.No. 2682/2002 on the file of JFCM II, Ernakulam. 5. According to Section 482 of the Code of Criminal Procedure, the inherent jurisdiction can be invoked to prevent abuse of process of Court or to give effect to any order or to secure ends of justice. While exercising such jurisdiction, this Court can inquire whether evidence in question is reliable or sufficient for a conviction or not. In this background, I have Crl.M.C Nos. 1732/04 & 2641/07 -5- considered the averments in Crl.M.C. 1732 of 2004 and Crl.M.C 2641 of 2007. Crl.M.C 1732 of 2004 was preferred against C.C. 28/2004 of the CJM Court Ernakulam in which one Mohan Prasad filed the case against five persons. After perusing the records and averments in the complaint, the learned Chief Judicial Magistrate took cognizance against two persons alone. Before that the case was sent for investigation under Section 156(3) of the Cr.P.C. Police filed Annexure IV final report in the form of refer report which led to file C.C. No. 28/2004 on the file of CJM Court Ernakulam. 6. It is found that the second accused in C.C. 28/2004 of the CJM Court, Ernakulam filed a complaint in the Judicial First Class Magistrate Court II, Ernakulam which was forwarded to Town North Police Station for investigation. Without considering the case pending before the Central Police Station, Ernakulam, the Town North Police filed Annexure III final report. In CC 28/2004 the defacto complainant's case is that the first and second accused in the above case misappropriated the funds of the Vidyodaya Trust which come nearly ₹ 42 lakhs and appropriated that amount for their own use. That being the Crl.M.C Nos. 1732/04 & 2641/07 -6- position, for the same set of facts the second accused in C.C 28/2004 could not file another case against the first accused alone. Therefore, the trial of the case based upon the final report in Crime No. 5/2002 is a mere abuse of process of Court. If that be so, it is suitable to quash the proceedings by invoking the inherent jurisdiction. Apex Court in **State of Haryana** v. **Bhajanlal** (1992 SCC (Crl.) 426) held as follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations 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 Statute concerned (under Crl.M.C Nos. 1732/04 & 2641/07 -7- which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute 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 accuse with a view to spite him due to private and personal vengeance.” So also the decisions in **Madhu Limaye** v. **State of Maharashtra** (1977 (4) SCC 551 and **R.P. Kapoor v. State of Punjab** (1960 SC 860), the same view was taken by the Apex Court. 7. Accepting the principles laid down by the Apex Court in the aforesaid decisions, it is found that prima facie case is made out against the first and second accused in C.C.No. 28/2004. Therefore it is difficult to quash Annexure A6 complaint in Crl.M.C. No. 1732 of 2004 at this stage. The learned counsel appearing for the petitioner in Crl.M.C 1732 of 2004 submits that since Annexure A6 complaint is pending before the trial court for a quite long time and bail was not taken, it is for the accused in the above case to surrender before that Court and apply for bail. If any such application is filed before the learned Magistrate, the Crl.M.C Nos. 1732/04 & 2641/07 -8- learned Magistrate shall consider that application and dispose of the same in accordance with law. In the said circumstance Crl.M.C No. 1732/2004 is dismissed. But in Crl.M.C. No. 2641 of 2007 petitioner is the sole accused in Annexure II FIR, Annexure III charge sheet and all its consequent proceedings pending as C.C. No. 2682 of 2002 on the file of the JFCM-II, Ernakulam, is hereby quashed and the said petition is allowed. **P.D. RAJAN, JUDGE.** kp/-