Joseph Mathew v. State of Kerala and The Joint Registrar, Co-operative Department, Alappuzha

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 23[rd] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, ``` ## **`1944`** ## **`CRL.MC NO. 4446 OF 2013`** ``` (CRIME NO.44/1987 OF PULINKUNNU POLICE STATION, ALAPPUZHA) ``` ``` IN L.P.NO. 19/1995 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,AMBALAPPUZHA`** ## **`PETITIONER/ACCUSED NO.2:`** ``` JOSEPH MATHEW AGED 57 YEARS S/O.MATHEW, ARASSERIL VEETTIL, PULINKUNNU VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT ``` ``` BY ADV SRI.B.PRAMOD ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 2THE JOINT REGISTRAR CO-OPERATIVE DEPARTMENT,ALAPPUZHA ``` ``` BY ADV SRI.NOUSHAD.K.A PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No. 4446 of 2013 2 ## **BECHU KURIAN THOMAS, J. ==================== Crl.M.C.No. 4446 of 2013** **=====================** _Dated this the 23[rd] day of November, 2022_ ## **ORDER** Petitioner was the 2[nd] accused in Crime No.44/1987 of Pulinkunnu Police Station, Alappuzha, which was taken cognizance as C.C.No.131/1987 on the files of Judicial First Class Magistrate Court, Ramankary. The offence alleged against the petitioner and another accused was under Sections 409 and 477A r/w Section 34 of the Indian Penal Code, 1860. 2. According to the prosecution, the petitioner who was the accountant of Vadakke Angadi Service Co-ooperative Bank, Pulinkunnu, and the 1[st] accused who was its Secretary, had committed criminal breach of trust and falsification of accounts and misappropriated various amounts from 30.11.1982 to 28.06.1985 and thereby committed the offences alleged. 3. Cognizance of the case was taken as C.C.No.131/1987 on the files of the Judicial First Class Magistrate Court, Ramankary, which was later transferred to Judicial First Class Magistrate Court, Ambalapuzha and renumbered as C.C.No.245/1989. During the course of trial, the learned Magistrate by judgment dated 30.09.1993, acquitted the 1[st] accused and since petitioner was absconding, case Crl.M.C.No. 4446 of 2013 3 against him was directed to be split up. It was later renumbered as C.C.No.398/1993 on the files of the Judicial First Class Magistrate Court, Ambalapuzha. Despite repeated warrants, petitioner failed to appear and therefore, the case was transferred to the long pending register as L.P.No.19/1995, and the case remains in the long pending register till now. 4. Sri.B.Pramod, learned counsel for the petitioner contended that by virtue of the acquittal of the 1[st] accused in C.C.No.245/1989 as per Annexure II Judgment, dated 30.09.1993, the very substratum of the prosecution case has been effaced and therefore, continuance of the criminal proceedings against the petitioner would not subserve the interests of justice and on the other hand it would only lead to wastage of judicial time and resources. The learned counsel also contended that the basic ingredient of entrustment, required to bring home the offence Section 409 of the IPC and the position held by the accused as an accountant were both not proved by the prosecution, thereby rendering the said offences inapplicable. The learned counsel relied upon the decision in _**Moosa vs. Sub Inspector of Police [2006 (1) KLT 552]** and_ _**Abbas vs. State of Kerala [2013 (2) KLT 976]**_ in support of his contentions. 5. Sri.Noushad.K.A, the learned Public Prosecutor, on the other hand opposed the contentions and submitted that petitioner has been evading the process of law from the year 1987 till date and has not appeared at all and therefore, it is not available to the petitioner to Crl.M.C.No. 4446 of 2013 4 contend that he should be given the benefit of acquittal of the coaccused. Even otherwise, the learned Public Prosecutor submitted that the substratum of the case has not vanished merely by the acquittal of the co-accused since, it is still available to the prosecution to produce documents appointing the petitioner as an accountant and therefore, the said judgment by itself does not justify the quashing of the proceedings. 6. I have considered the rival contentions and have also perused carefully the judgment in C.C.No.245/1989. 7. In the judgment, in C.C.No.245/1989, the prosecution had examined four witnesses and marked Exhibit P1 to P13. After analysing the evidence adduced, the learned Magistrate came to the conclusion that: _“in order to prove the offence under Section 409 IPC, “entrustment” must be proved. Prosecution has not discharged the liability to prove “entrustment” in this case. It is also seen that the decision of the Board of Directors of the Service Co-operative Bank involved in this case appointing A1 as secretary and A2 (absconding Accused) as cashier of the said bank is not marked in evidence by the prosecution. This, according to me, is fatal to the case of the prosecution. In these circumstances, A1 cannot be found guilty of the offences alleged against him. From the fore-going discussions, I hold that the prosecution has miserably failed in proving the case against A1 and hence I find A1 in this case not guilty of the offences alleged against him. Hence point (i) is decided against the prosecution.”_ 8. it is thus stated that the basic ingredient of Section 409 and Section 477A IPC was not proved by the prosecution in the earlier trial. Crl.M.C.No. 4446 of 2013 5 When the entrustment of the amount with the accused was not proved, substratum of the prosecution case under Section 409 IPC stands effaced. Similarly, when despite various documents having been produced by the prosecution, the orders appointing the accused either as a Secretary or as a Cashier were also not marked in evidence. The said finding also erodes the basis of Section 477A of the IPC. ## 9. In the decision in _**Moosa vs. Sub Inspector of Police**_ _**[2006 (1) KLT 552]**_ Full Bench of this Court held that only a judgment interparties would be relevant to bar a second trial as contemplated under Section 403 of the IPC and even when the co-accused is acquitted, the other accused can be convicted, if there are good reasons to do so at the same trial, and therefore the mere acquittal of one of the accused is not a reason to bar the trial of the other accused. The Court went on to hold that however, when the substratum of the prosecution case is effaced by the judgment of acquittal of the coaccused, then the same would be an exception to the general principle, that the benefit of acquittal cannot be utilised by a co-accused. In the decision in _**Abbas vs. State of Kerala [2013 (2) KLT 976]**_ also the learned Single Judge of this Court had held that where when the very substratum of the prosecution case is lost, there can be an exception to the rule that, the judgment of acquittal of co-accused would not act as a bar for the subsequent trial of an absconding accused. 10. Acquittal of a co-accused is not per se sufficient to acquit another accused. (see the decisions in _**Yanob Sheikh @ Gagu vs.**_ Crl.M.C.No. 4446 of 2013 6 ## _**State of West Bengal [2013 (6) SCC 428]**_ and _**Y.Venkaiah vs. State of Andhra Pradesh [2009 (12) SCC 126]** )._ Each case has to be viewed separately and specifically. 11. Viewed in the light of the above referred judgments and the principles laid down therein, I am of the view that since the basic ingredients of Section 409 and 477A IPC was not proved, and the judgment in C.C.No.245/1989 observe that there was no evidence to prove entrustment or the appointment of the second accused as a cashier, the substratum of the prosecution case has been effaced. 12. Apart from the above, the case has been pending consideration from 1987 onwards. More than 34 years have elapsed, since the registration of the crime and the taking of cognizance, though petitioner cannot claim the benefit of long pendency of the matter due to his own conduct the delay is certainly a circumstance, which requires to be borne in mind by this Court, while considering the grant of benefit of acquittal of the co-accused. 13. In the light of the above discussion, I am of the view that petitioner ought to be given the benefit of acquittal of the co-accused in the judgment in C.C.No.245/1989. Accordingly, I find that continuance of proceedings against petitioner in C.C.No.398/1993 on the files of the Judicial First Class Magistrate Court, Ambalapuzha, now transferred as L.P.No.19/1995 on the files of the said court is liable to be quashed. Crl.M.C.No. 4446 of 2013 7 14. Accordingly, I quash all further proceedings in C.C.No. 398/1993 on the files of the Judicial First Class Magistrate Court, Ambalapuzha against the petitioner. This petition is allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** jka/23.11.22 Crl.M.C.No. 4446 of 2013 8 ## **`APPENDIX OF CRL.MC 4446/2013`** ``` PETITIONER’S ANNEXURES ANNEXURE-1TRUE COPY OF THE CHARGE SHEET IN CRIME NO.44/1987 OF PULINKUNNU POLICE STATION,ALAPPUZHA DISTRICT ANNEXURE-II TRUE COPY OF THE JUDGMENT DATED 30-09-1993 IN C.C NO 245/89 OF J.F.C.M COURT,AMBALAPPUZHA ```