Fareed Rahman and Gaddafi P.P. v. State of Kerala and The Station House Officer, Kasaragod Police Station

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 ## CRL.MC NO. 3689 OF 2022 [AGAINST THE PROCEEDINGS IN LPC 53/2010 PENDING BEFORE THE CHIEF ## JUDICIAL MAGISTRATE,KASARAGOD] [CRIME NO.581/2009 OF KASARAGOD POLICE STATION] ## PETITIONERS/ACCUSED NOS.2 AND 3: 1 FAREED RAHMAN,AGED 39 YEARS,SON OF AHAMMED KOYA, RESIDING AT SUJANAS MANZIL, PANNIYANKARA, KALLAYI, KOZHIKODE DISTRICT., PIN - 673003 2 GADDAFI P.P,AGED 42 YEARS,S/O. ABDU P.P., RESIDING AT BICHU HOUSE, MEPPARAMBA, NALLALAM P.O., KOZHIKODE DISTRICT., PIN - 673027 BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RESHMA SANTHOSH RENJISH S. MENON ## RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER,KASARAGOD POLICE STATION, KASARAGOD DISTRICT, PIN - 671121 ## OTHER PRESENT: BY ADV.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.3689 /2022 2 ## O R D E R The petitioners are accused Nos.2 and 3 in Crime No.581/2009 of Kasaragod Police Station, which is registered for the offence punishable under Section 420 r/w. Section 34 of the Indian Penal Code (IPC). 2. The prosecution case is as follows: the 1[st] accused was maintaining an account with the Federal Bank Ltd., Kasaragod branch, which is the defacto complainant in this case. Two foreign cheques, one for 2700 US dollars and the other 20000 British pounds were presented in the NRI bank account of the aforesaid bank for collection. Thereupon, the bank notionally credited an amount of Rs.7,52,239/- in the account of the 1[st] accused. Later, the 1[st] accused had issued cheques to the 2[nd] and 3[rd] accused and by using the said cheques, the CRL.MC No.3689 /2022 3 2[nd] accused had withdrawn an amount of Rs.3,60,000/- on 7.2.2009, and the 3[rd] accused had withdrawn an amount of Rs.3,40,000/- on 1.2.2009. Subsequently, the foreign cheques which were sent for the collection were dishonoured. The complaint was submitted in such circumstances by the bank alleging the offence under Section 420 r/w. Section 34 of IPC. 3. Annexure-A1 is the F.I.R. registered, and after completing the investigation, Annexure-A3 final report was submitted by the police. The Chief Judicial Magistrate Court, Kasaragod, has taken cognizance thereon as C.C.No.529/2013. In the trial conducted, the 1[st] accused alone participated. The aforesaid trial resulted in Annexure-A4 judgment by which the learned Magistrate acquitted the 1[st] accused. The case against the petitioners was split up, and it is CRL.MC No.3689 /2022 4 now pending as LPC No.53/2010 on the file of the Chief Judicial Magistrate Court, Kasaragod. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A3 final report. 4. It is the case of the petitioner that, consequent to the order of acquittal passed by the learned Magistrate as per Annexure-A4 judgment, the substratum of the case itself is lost and hence further proceedings against the petitioners herein is unnecessary as it would be a wastage of precious judicial time. Reliance was placed on the judgment in Moosa v. Sub Inspector of Police [2006(1)KLT 552] rendered by a Full Bench of this Court. 5. Heard Sri. T.Madhu, the learned counsel for the petitioners, Sri. Sudheer Gopalakrishnan, the learned counsel for the respondents. CRL.MC No.3689 /2022 5 6. I have gone through the records, including the observations made in Annexure-A4 judgment. The learned Magistrate is seen to have taken into consideration in detail the evidence adduced by the prosecution. The reasons which prompted the learned Magistrate to acquit the 1[st] accused are categorically mentioned in paragraph 15 of the said judgment. It is evident from the observations made therein that a clear finding has been entered into to the effect that crediting the amount notionally in the account of the 1[st] accused was a mistake on the part of the officers of the bank. It was also found that withdrawing the amount from his account by issuing cheques cannot be treated as an act which attracts the offence under Section 420 of the IPC. It was found that the act of withdrawing the amounts credited in his account was a legal transaction which cannot be treated as an act that constitutes an offence. It was also CRL.MC No.3689 /2022 6 observed that the dereliction of duty on the part of the bank officials and the liability arising therefrom could not be fastened upon the accused. 7. As far as the prosecution case against the petitioners is concerned, the allegation is that they have withdrawn the amounts from the account of the 1[st] accused by using cheques issued in their favour by the 1[st] accused. When the 1[st] accused, who was the holder of the bank account, is acquitted by the court after a full-fledged trial, there is no meaning in prosecuting the petitioners herein who have just withdrawn the amount based on a cheque validly issued by the 1[st] accused. Thus, the finding entered into by the learned Magistrate in Annexure-A4 judgment will have an impact of destroying the substratum of the case itself. Therefore, further prosecution against the petitioners is an unwarranted affair. In such CRL.MC No.3689 /2022 7 circumstances, I am of the view that this is a fit case in which the principles laid down by the Full Bench of this Court in Moosa’s case (supra) can be applied. In the result this Crl.M.C. is allowed. Annexure-3 final report submitted in Crime No.581/2009 of Kasaragod Police Station and all further proceedings pursuant to it, including the proceedings in LPC No.53/2010 pending before the Chief Judicial Magistrate Court, Kasaragod, are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.3689 /2022 8 ## APPENDIX OF CRL.MC 3689/2022 PETITIONERS’ ANNEXURES: Annexure-A1 THE CERTIFIED COPY OF THE FIR DATED 13/8/2009 IN CRIME NO.581/2009 OF KASARAGOD POLICE STATION. Annexure-A2 THE CERTIFIED COPY OF THE PETITION DATED 4/8/2009 FILED BY THE CHIEF MANAGER, FEDERAL BANK LTD., KASARAGOD BRANCH Annexure-A3 THE CERTIFIED COPY OF THE FINAL REPORT DATED 31/12/2009 IN CRIME NO.581/2009 OF KASARAGOD POLICE STATION Annexure-A4 THE CERTIFIED COPY OF THE JUDGMENT DATED 4/5/2019 IN C.C.NO.529/2013 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT; KASARAGOD. //TRUE COPY// SD/- P.S. TO JUDGE