Gopinathan C. v. Raji Vijayan and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH JULY, 2008 / 26TH ASHADHA, 1930 **Crl.MC.No. 4419 of 2005 (B)** (CC.250/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA) .................... PETITIONER/ACCUSED: ---------------------------- GOPINATHAN.C. EVES'S GARDEN, CHOONDUPALAKA, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------- 1. RAJI VIJAYAN, D/O.SUKUMARI, ASHA NIVAS, KULATHUMMAL VILLAGE, KULANGARA MURI, CHOONDUPALAKA, KATTAKKADA, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR K.C.SANTHOSH KUMAR FOR R2. BY ADV. SRI.T.GOPALAKRISHNAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.M.C.No. 4419 of 2005 B --------------------------------------------Dated this the 17[th] day of July, 2008** ## **O R D E R** This petition under Section 482 of the Code of Criminal Procedure is filed by the accused in Crime No.115 of 2005 of Kattakkada Police Station and C.C.No.250 of 2005 pending before the Judicial First Class Magistrate Court, Kattakkada. In these proceedings, he seeks an order to quash Annexure-A final report and all further proceedings upon C.C.No.250 of 2005 of the J.F.C.M.Court, Kattakkada. 2. The petitioner, who is the sole accused in the above case, conducted an institution in the name and style, ' **Reliable Institute for English and Maths** ', at a place viz., Choondupalaka Junction, Kattakkada, Thiruvananthapuram District and his wife Sheeja Gopinathan has conducted a private bank in the very same building under the name and style, 'Reliable Bankers'. According to the petitioner, one Raji @ Rajeswari, who was a resident in the locality, had transaction through the bank run by the petitioner's wife. The said Raji, before shifting her residence from **Crl.M.C. No.4419 of 2005** ## **:-2-:** Choondupalaka to Kanjiyoorkonam, closed all dealings with the bank run by the petitioner's wife on 20.2.2005. It is the further case of the petitioner that after closing all transactions on 20.2.2005 between the petitioner's wife and the said Raji, anonymous phone calls were received by the wife of the petitioner threatening her that she would be finished or otherwise a sum of Rupees one lakh should be given to Raji towards the excess interest taken from her for the gold pledged. It is also stated that the phone calls are made in male voice by some persons who claimed to be the friends of the said Raji. When the anonymous phone calls became intolerable, the petitioner's wife had made a written complaint to the Circle Inspector of Police, Kattakkada. Thus, on the next day of filing the complaint before the Police i.e., on 18.3.2005, the petitioner was summoned to the Office of the Circle Inspector of Police, Kattakkada. On his appearance, he noted the presence of said Raji and also certain other persons. It is the case of the petitioner that the Circle Inspector of Police abused him in the presence of the others ## **Crl.M.C. No.4419 of 2005** ## **:-3-:** including the said Raji against whom the wife of the petitioner made the complaint. It is also the case of the petitioner that the Circle Inspector twisted his hand and rushed towards the petitioner, pushing him towards the wall and threatened that he will see that both the institutions run by the petitioner as well as his wife would be finished forever. It is also the case of the petitioner that after discussion with certain other persons, the Circle Inspector asked the petitioner to make immediate arrangement for payment of a sum of Rs.2,75,000/-. When the petitioner expressed his unwillingness and tried to convince the Circle Inspector about the complaint for which he was summoned there, the Circle Inspector again abused the petitioner and further threatened that if the amount was not arranged forthwith, the gold and money from the locker of the petitioner's wife would be taken to meet the said demand. According to the petitioner, since the torture was continued, the petitioner's brother in law, who was waiting outside, was directed to bring the cheque leaves from the house of the petitioner and also an amount of **Crl.M.C. No.4419 of 2005** ## **:-4-:** Rs.50,000/-. Thus upon the pressure exerted and threat employed by the C.I.of Police, the petitioner had put his signatures on two cheque leaves bearing Nos.023879 and 023880 for an amount of Rs.1,00,000 and Rs.1,25,000/- respectively connected with S.B.Account No.6738 of Bank of India. It is also alleged that certain blank stamp papers which contained the signatures of the petitioner were also obtained. It is the further case of the petitioner that on 19.3.2005, by issuing letter to his Bank Authority, the petitioner directed them to stop payment connected with the above cheques if the same are presented for encashment. Apart from that, he had sent a petition dated 19.3.2005 to the Director General of Police pointing out the occurrence taken place on 18.3.2005 at the instance of the C.I.of Police. Besides the above, he had caused to send a lawyer notice dated 21.3.2005 to the Circle Inspector of Police, Kattakkada demanding him to return the cheque leaves and also the blank paper which contained his signature. On 3.4.2005 another petition was sent to the Director General of Police as well as the Chief Secretary **Crl.M.C. No.4419 of 2005** ## **:-5-:** demanding damages for the torture suffered by him at the instance of the C.I.of Police. He had sent another letter to the Secretary, Home Department seeking sanction under Section 197 of the Code of Criminal Procedure to prosecute the C.I. Of Police, Kattakkada. It is also the case of the petitioner that he had preferred C.M.P.No.2598 of 2005 before the J.F.C.M.Court, Kattakkada on 28.4.2005 against the C.I.of Police and the said Raji for commission of the offences punishable under Sections 294(b),323,342, 351,384,420 read with 34 of I.P.C. Learned counsel for the petitioner submits that the court below has taken cognizance upon the above complaint and a case has been instituted against the said person. It is also the case of the petitioner that since no compensation was ordered by the Director General of Police or the Chief Secretary in spite of his demand based upon the petition dated 3.4.2005, the petitioner approached this Court by filing W.P(C) No.14397 of 2005 seeking an order for compensation and also for a direction to initiate departmental proceedings against the Circle Inspector of Police, **Crl.M.C. No.4419 of 2005** ## **:-6-:** Kattakkada. The said writ petition is still pending in this Court for consideration. It is also the case of the petitioner that based upon the above mentioned two cheque leaves, one A.K.Dinesan has filed two private complaints against the petitioner for the offences under Section 138. Against the said private complaints, the petitioner had approached this Court by filing Crl.M.C.Nos.2690/2005 and 2957/2005 against S.T.Nos.3064/2005 and 3065/2005 pending before the J.F.C.M.Court, Thrissur. The said case was filed by one Dineshan with whom the petitioner has absolutely no connection. The proceedings of the J.F.C.M.court, Thrissur in the above two cases are stayed by this Court as per the proceedings in the above two criminal M.Cs. which are still pending consideration. Thus, according to the petitioner, he had initiated legal proceedings against the untoward incident and the torture meted out against the petitioner at the instance of the Circle Inspector of Police, Kattakkada, from the next day onwards i.e., on 19.3.2005. It was on 18.3.2005, the petitioner was called to the Office of the C.I.of Police, **Crl.M.C. No.4419 of 2005** ## **:-7-:** Kattakkada, he was abused and two signed cheque leaves and money were obtained under coercion and threat. It was on 19.3.2005, the petitioner had sent notice to the bank authorities requesting to stop the payment connected with cheque leaves mentioned above. It is also on 19.3.2005, the petitioner sent a written petition to the D.G.P. against the C.I. Of Police, Kattakkada. A lawyer notice was sent on 21.3.2005 to the C.I.of Police demanding to return the cheque leaves and blank paper. Thus, according to the petitioner, the present crime in which he is arrayed as accused is registered to counter blast the proceedings initiated by the petitioner. According to the petitioner, Annexure A proceedings is a cooked up story created at the instance of the C.I. Of Police with the help of the de facto complainant. It is also the case of the petitioner that going by Annexure A charge, it can be seen that no offence under Section 354 I.P.C. was disclosed against the petitioner. The above charge and the allegations, the petitioner submits that, shall be considered in the above factual background and if so, it can be seen that ## **Crl.M.C. No.4419 of 2005** ## **:-8-:** Annexure A crime is registered due to sheer animosity and with a mala fide intention to counter blast the proceedings initiated by him against the C.I. Of Police and the said Raji. Therefore, the petitioner prays that Annexure A report and the proceedings thereon may be quashed. 3. I have heard the learned counsel for the petitioner and also the Public Prosecutor. 4. Reiterating the contention taken in the petition, the learned counsel for the petitioner submits that the present crime and Annexure A report are the result of after thought and story cooked up by the C.I. of Police against the petitioner with a view to prevent the petitioner from proceeding against the Circle Inspector of Police and the said Raji. It is pointed out by the learned counsel that immediately after the incident on 18.3.2005, which occurred in the office of the Circle Inspector of Police, Kattakkada, he had taken all possible, legal and procedural steps against the Circle Inspector of Police and also to save his money and to defend false and vexatious litigation against him. The ## **Crl.M.C. No.4419 of 2005** ## **:-9-:** learned counsel invited my attention to the two decisions of this Court reported in **Vasudevan** v. **State of Kerala** (2006(2) KLT 1019) and **Sasidharan** v. **State of Kerala** (2005(3) KLT 185) and submits that going by Annexure A report, it can be seen that no offence under Section 354 of I,.P.C. is disclosed and there is no meaning in asking the petitioner to face trial as there is no scope for a meaningful prosecution. 5. Per contra, the learned Public Prosecutor submits that Annexure A report is filed by the Police after a thorough and detailed investigation, stating that the petitioner has committed the offence punishable under Section 354 of I.P.C. It is also the case of the Public Prosecutor that the trial is not so far started and it is now only in the initial stage. The materials collected by the Police through investigation are sufficient to frame a charge against the petitioner under Section 354 of I.P.C. It is also pointed out by the learned Public Prosecutor that the decisions relied on by the petitioner are not applicable in the present case since those decisions are based upon the evidence which ## **Crl.M.C. No.4419 of 2005** ## **:-10-:** was already adduced in that case and the dictum laid in these decisions are based upon the materials and evidence therein. But, in the present case, so far, the trial is not started and therefore, whether Section 354 of I.P.C. is disclosed or not, can be assessed only at the time of evaluation of evidence. Therefore, the Public Prosecutor submits that the Crl.M.C. is liable to be dismissed. 6. I have carefully considered the rival contentions of learned counsel for the petitioner as well as the learned Public Prosecutor. I have also perused the available records. Considering the facts and circumstances involved in the case, especially the documents which are made available to me by the petitioner, it can be seen that Crime No.115 of 2005 of Kattakkada Police Station was registered only on 23.3.2005. Before the registration of the above crime, according to the petitioner, he was called to the office of the Circle Inspector of Police and it is further alleged that he was subjected to torture and threatening and obtained cheque leaves and money from him. It is also ## **Crl.M.C. No.4419 of 2005** ## **:-11-:** the case of the petitioner that immediately after his release from the Office of the Circle Inspector of Police, he had sent a stop memo dated 19.3.2005 to his Bank preventing encashment of the cheque in question. It is a fact, which is beyond dispute, that though prosecution was launched under Section 138 of the N.I.Act, all proceedings thereon are stayed by this Court and so far, the stay order is not vacated. It is also the case of the petitioner that he had sent a complaint against the Circle inspector of Police on 19.3.2005 and sent a lawyer notice to the Circle Inspector of Police on 21.3.2005 after he came out from the Office of the C.I.of Police on 18.3.2005. So the facts and circumstances involved in the case show that there is substance in the allegation against the C.I. of Police. It is also a fact that petitioner has already approached this Court by filing W.P(C) No. 14397 of 2005 for an order of compensation and also for initiating departmental proceedings against the Circle Inspector of Police. It is also submitted by learned counsel for the petitioner that upon a private complaint filed by the petitioner, against the C.I.of Police as well as ## **Crl.M.C. No.4419 of 2005** ## **:-12-:** the said Raji, the court below has already taken cognizance for the offences punishable under Section 294(b), 323, 342, 351, 384, 420 read with Section 34 I.P.C. 7. According to me, the crime now registered and the report filed thereon have to be examined in the light of the above factual backgrounds. Learned counsel for the petitioner submits that even going by Annexure A report, no offence under Section 354 is disclosed against the petitioner. I have carefully considered Annexure A report. On a reading of the Police charge, it can be seen that the allegation against the petitioner is that when CW-1 demanded the amount due and other documents on 23.3.2005, at 11.30 a.m., the accused asked CW-1 with angry as to which are the documents and money due to her. The further allegation is that the accused thereafter approached the de facto complainant and separated the two female children and he caught both shoulders of the de facto complainant by using his hands and by holding on the saree of the de facto complainant, she was driven out and thereby, created mental agony **Crl.M.C. No.4419 of 2005** ## **:-13-:** and thereby committed offence under Section 354 of I.P.C. On a reading of the above report, there is nothing to show that the said act was done by the petitioner with an intention to outrage the modesty of the de facto complainant/CW-1. Even on a close analysis of the transaction stated in the Police charge, it can be seen that certain force was applied on the de facto complainant while asking the documents and money due to her from the petitioner and the same was in a provoking manner and thereafter, the de facto complainant was driven out of the building by applying force. So it can be seen that the said incident had taken place as a result of some conversation regarding the transaction entered into by the parties regarding the pledging of ornaments or like. On a perusal of the above charge, no prudent man can come into a conclusion that the said act was done with an intention to outrage the modesty of CW-1, the de facto complainant. In the decision reported in **Vasudevan** v. **State of Kerala** (2006(2) KLT 1019) (cited supra), this Court had held that even though, it is true that assault or criminal force ## **Crl.M.C. No.4419 of 2005** ## **:-14-:** to woman is one of essential pre-conditions for applicability of S.354 IPC, but the same has to be with an intention to outrage her modesty or knowing it to be likely that he will thereby outrage her modesty. It was also held that the second element or ingredient of the offence i.e.,intending to outrage or knowing it to be likely that he will thereby outrage her modesty, is completely missing in this case. It was also held that a case of pure and simple hurt has been converted into an offence under Section 354 IPC, which is wholly impermissible and illegal. In the decision in **Sasidharan** v. **State of Kerala** (2005(3) KLT 185) which was relied on by the learned counsel for the petitioner, this Court had held that mere assault or criminal force does not amount to offence and in order to constitute an offence under the Section, there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. In the present case, absolutely there is no allegation or material to show that the said act was done with an intention to outrage the modesty of CW1, ## **Crl.M.C. No.4419 of 2005** ## **:-15-:** the de facto complainant. In the absence of any allegation or materials that the said incident had occurred at the instance of the petitioner with the intention to outrage the modesty of CW.1, there is no meaning in directing the petitioner to undergo the ordeal of trial. 8. The above vague allegation wherein the essential ingredients of Section 354 IPC are absent, has to be examined in the factual back ground discussed earlier. As pointed out earlier, before the registration of F.I.R. in the present case, it can be seen that certain incidents have taken place at the instance of the Circle Inspector of Police which are supported by contemporaneous documents. Therefore, I am of the view that the present crime and Annexure A report are filed with a view to counter blast the proceedings initiated by the petitioner against the Circle Inspector of Police, Kattakkada. Therefore, if the present crime and the proceedings pending are allowed to continue, it will amount to abuse of process of court and the same shall be prevented by exercising the powers of this Court ## **Crl.M.C. No.4419 of 2005** ## **:-16-:** under Section 482 of Cr.P.C. In the result, the Crl.M.C. is allowed. Annexure A report and C.C.No.350 of 2005 instituted thereon and pending before the J.F.C.M., Kattakkada are quashed. There is no order as to costs. **V.K.Mohanan, Judge** MBS/ ## **Crl.M.C. No.4419 of 2005** **:-17-:** **V.K.MOHANAN, J.** -------------------------------------------Crl.M.C.NO. OF 200 ------------------------------------------- **O R D E R** DATED: 7-2008 ## **Crl.M.C. No.4419 of 2005** **:-18-:**