Geetha Velayudhan v. State of Kerala and Bonny Antony

Crl.M.C.No.6761/22 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944_ _CRL.MC NO. 6761 OF 2022_ _AGAINST THE ORDER/JUDGMENTCC 29/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI_ ## _PETITIONER/ACCUSED NO.2:_ _GEETHA VELAYUDHAN, AGED 47 YEARS, W/O.CHANDRAN, AGED 47 YEARS, PURATHAVALAPPIL HOUSE, PULLAT, TRICHUR – 680 663. NOW RESIDING AT FLAT NO. 302, 3RD FLOOR, DREAM PARADISE, SECTOR - 9, ULWE NAVI MUMBAI, PIN – 410 206._ _BY ADVS. BASIL CHANDY VAVACHAN CHARUTHA BHAIJU GEORGIE SIMON CHANDHANA BHAIJU BASIL SAJAN BASIL SCARIA_ ## _RESPONDENTS/COMPLAINANT/DE FACTO COMPLAINANT:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _2 BONNY ANTONY, AGED 27 YEARS, S/O.PJ ANTONY, POTHAMPALLY HOUSE, NORTH KUMBALANGHI,_ Crl.M.C.No.6761/22 2 _KUMBALANGHI, PALLURUTHY P.O, KOCHI, PIN – 682 006._ _SRI.C.S.HRITHWIK -SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.6761/22 3 ## **O R D E R** Petitioner is Accused No.2 in Crime No.1001 of 2019 of Harbour Police Station, Ernakulam, which is now pending as C.C.No.29 of 2021 of Judicial First Class Magistrate Court-I, Kochi. 2. The prosecution case is that the 1[st] accused is running a company in the name of “Vigil Cruise Voy Ltd.” and the 2[nd] accused is the HR Manager of the said company. The 3[rd] accused, who was having acquaintance with the de facto complainant introduced him to accused No.1 and he offered a job to the de facto complainant on a ship with a good salary. For that purpose, the de facto complainant has transferred an amount of Rs.50,000/on 19.17.2018 and Rs.2,50,000/- on 31.07.2018, and thus, a total amount of Rs.3,30,000/- (Rupees three lakhs thirty thousand only) was transferred. Later, the accused persons did not provide the employment as offered, and the amount was also not returned. The crime was registered in such circumstances, based on information submitted by the 2[nd] respondent herein, and after completing the investigation, Annexure-3 final report was Crl.M.C.No.6761/22 4 submitted by the police. This Crl.M.C. is filed by the petitioner challenging Annexure-3 final report and further proceedings pursuant to it. 3. Heard Sri.Basil Sajan, learned counsel for the petitioner and Sri.C.S.Hrithwik, learned Public Prosecutor for the State. 4. The specific contention put forward by the learned counsel for the petitioner is that, even if the allegations contained in Annexure-3 final report and the materials placed along with the same are accepted for their face value, no offences are made out as against the petitioner herein, who is the 2[nd] accused. Therefore, it is contended that the entire proceedings are clear abuse of the process of law, which warrants interference by this Court under Section 482 Cr.P.C. 5. On the other hand, the learned Public Prosecutor opposed the aforesaid contention by highlighting that, going through the allegations in Annexure-3, the role of the 2[nd] accused is evident and therefore, the question as to the culpability of the petitioner is a question of fact which has to be dealt with during the course of the trial. Crl.M.C.No.6761/22 5 6. I have gone through the records and heard the contentions raised from the side of the petitioner. It is evident from the records that the name of the petitioner was explicitly referred to in the FIS itself. As per the contents of the same, at the relevant time, the petitioner/2[nd] accused was working as the HR Manager, and she was the person who got the documents signed from the de facto complainant. The contention of the learned counsel for the petitioner is to the effect that, even as per the FIS, the amount was collected by the 1[st] accused even before the de facto complainant was introduced to the petitioner herein. Therefore, it is contended that she was only discharging her duties and hence no offence under Section 420 IPC can be attracted. The learned counsel also places reliance upon the decisions of this Court in **Govind M.S. S/o.Sasi Sekharan and Ors. v. the Secretary, Department of Home Affairs, Government of Kerala Secretariat and Ors [2020(1) KHC 74]** and the decision of the Honourable Supreme Court in **Archana Rana v. State of Uttar Pradesh and another [2021(0) AIR(SC)1177]** . Crl.M.C.No.6761/22 6 6. I have gone through the records. In this case, the allegation is that the petitioner, along with other accused in furtherance of a common intention, persuaded the de facto complainant to part with amounts by offering a job and later did not provide the job. The role of the petitioner is specifically mentioned in Annexure A1 FIS itself. As per the prosecution case, the aforesaid acts were allegedly committed by the accused persons in furtherance of common intention and the materials placed on record indicate a specified role to the petitioner. Therefore the question whether the petitioner was falsely implicated in the case is a question of fact, which cannot be considered in a proceeding under section 482 of the Cr.P.C. 7. The decisions relied on by the petitioner cannot be made applicable to the facts of this case as well. The decision of the Honourable Supreme Court in **Govind.M.S’s case (Supra)** , the question dealt with was with respect to the vicarious liability of the Director of a Company when the final report does not contain any details as to the specific role of the accused concerned, in the commission of the offence. I am of the view that the factual circumstances, in the said case were completely different. As far Crl.M.C.No.6761/22 7 as the decision in **Archana’s case (supra)** is concerned, the facts of the case were also completely different, and the offence involved were under Sections 419, 420, 323, 504 and 506 IPC, and the offence under Section 34 IPC was not there. The said case was decided in the factual background of that case, which is distinct from the allegations in this case. Therefore, the principles laid down are also not applicable. 8. Thus, after perusing the entire materials, I am of the view that the question of the involvement of the petitioner is a matter which has to be considered during the trial. Since the Annexure-2 final report contained certain specific allegations against the petitioner, it is only proper that the same be ascertained by the trial court at the time of trial. Hence, I do not find any reason to invoke the jurisdiction of this Court under Section 482 Cr.P.C., as I am of the view that this is a case beyond the scope of such proceedings. Accordingly, this Crl.M.C. is dismissed. However, it is made clear that the observations made in this case were only to examine whether the petitioner could make out a case for invoking the jurisdiction of this court under Section 482 Cr.P.C and under no Crl.M.C.No.6761/22 8 circumstances, the observations made in this order would cause any prejudice to the petitioner during the course of the trial. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/20.10.22 Crl.M.C.No.6761/22 9 ## _APPENDIX OF CRL.MC 6761/2022_ _PETITIONER ANNEXURES_ _Annexure-1 THE TRUE COPY OF FIR IN CRIME NO. 1630/2019 OF PALLURUTHY KASABA POLICE STATION ALONG WITH FI STATEMENT OF DEFACTO COMPLAINANT_ - _Annexure-2 THE TRUE COPY OF FIR IN CRIME 1001/2019 OF HARBOUR POLICE STATION, ERNAKULAM_ - _Annexure-3 THE TRUE COPY OF FINAL REPORT IN CRIME 1001/2019 OF HARBOUR POLICE STATION, ERNAKULAM_ _Annexure-4 THE TRUE COPY OF MEDICAL CERTIFICATE OF THE PETITIONER_