Kamarudheen and Others v. State of Kerala and Hussain K.H.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** ## **Crl.MC.No.8082 OF 2016** **CC NO.958/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MARADU** **CRIME NO.236/2015 OF MARADU POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED:** |**1**|**KAMARUDHEEN,**| |---|---| ||**S/O.HUSSAIN, KEY ACCOUNT EXECUTIVE,**| ||**MAGMA FINCORP LIMITED, 1ST FLOOR,**| ||**JAIN TOWERS, BYEPASS ROAD, VYTTILA,**| ||**ERNAKULAM – 682 019.**| |**2**|**MATHEW GEORGE,**| ||**S/O T.M.GEORGE, STATE HEAD COLLECTIONS,**| ||**MAGMA FINCORP LIMITED, 1ST FLOOR, JAIN TOWERS,**| ||**BYEPASS ROAD, VYTTILA, ERNAKULAM-682019.**| |**3**|**GIRISH R, S/O.RADHKRISHNAN.A,**| ||**CUSTOMER CARE MANAGER, MAGMA FINCORP LIMITED,**| ||**1ST FLOOR, JAIN TOWERS, BYEPASS ROAD, VYTILA,**| ||**ERNAKULAM-682019.**| |**4**|**ALEX K.I, S/O.K.A.ISSAC,**| ||**ASSISTANT MANAGER, MAGMA FINCORP LIMITED,**| ||**1ST FLOOR, JAIN TOWERS, BYEPASS ROAD, VYTTILA,**| ||**ERNAKULAM-682019.**| |**5**|**CLEETUS, S/O.LATE AUGUSTINE,**| ||**DIRECT SELLING AGENT OF MAGMA FINCORP LIMITED,**| ||**1ST FLOOR, JAIN TOWERS, BYEPASS ROAD, VYTILA,**| ||**ERNAKULAM-682019.**| ||**BY ADVS.**| ||**SRI.PHILIP T.VARGHESE**| ||**SMT.ACHU SUBHA ABRAHAM**| ||**SMT.ANN MALU ALBI**| ||**SMT.K.R.MONISHA**| ||**SMT.K.M.SUNU**| ||**SRI.THOMAS T.VARGHESE**| Crl.MC.No.8082 OF 2016 2 ## **RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM ,**| ||**REPRESENTING THE STATION HOUSE OFFICER,**| ||**MARADU POLICE STTION, MARADU-682 304**| |**2**|**HUSSAIN K.H, S/O.HYDROSE,**| ||**ETTUKULLIL HOUSE, ERUMATHALA,**| ||**ALUVA - 683563.**| ||**R2 BY ADV. SRI.RENNY AUGUSTINE**| **SMT. M.K.PUSHPALATHA, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.8082 OF 2016 3 ## **ORDER** Invoking the powers under Section 482 of the Code of Criminal Procedure (“the Code” for short), the petitioners have approached this Court seeking to quash the criminal proceedings initiated against them by the 2[nd] respondent, which is now pending on the files of the Judicial First Class Magistrate Court, Maradu as C.C.No.958 of 2016. In the above proceeding, the petitioners face indictment for offences punishable under Sections 420, 468, 471 r/w Section 34 of the IPC, Section 18(A) of the Kerala Money Lenders Act and Section 9 of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012. 2. It appears that the petitioners herein are the principal officers as well as employees of Magma Fincorp Ltd. having its office at Ernakulam. It is alleged that the 2[nd] respondent availed a loan from Magma Fincorp Ltd. for purchasing vehicles. When he defaulted, arbitration proceedings were initiated. It is alleged that the petitioners approached him and induced him to believe that they would take care of the matter and received cheques. Later, he was served with a notice from the Judicial Magistrate of First Class, Calcutta. Alleging that the 2[nd] respondent was induced by the petitioners to part with amount, a complaint was lodged and prosecution proceedings were initiated. 3. Heard Sri.Philip T.Varghese, the learned counsel appearing for the petitioners, Sri.Renny Augustine, the learned counsel appearing for the 2[nd] Crl.MC.No.8082 OF 2016 4 respondent, and the learned Senior Public Prosecutor. 4. Sri.Renny Augustine, the learned counsel appearing for the party respondent, submitted that after much deliberations, the victim has resolved his disputes and differences with the petitioners and he has now decided that the continuance of criminal proceedings is an unwanted exercise. He refers to the affidavit filed by the victim before this Court and asserts that he has no objection in bringing the prosecution proceedings to a premature termination. 5. Sri.Philip T.Varghese, the learned counsel appearing for the petitioners, urged that in view of the compromise arrived at between the victim and the offenders, the possibility of conviction is bleak and the continuation of the criminal proceedings will only inure to put both the parties to oppression and prejudice. Both sides submit that the wrong is basically private in nature and no public interest is involved. 6. The learned Senior Public Prosecutor, on instructions, submitted that the investigating officer has reported that the petitioners are not involved in any other crimes. It is further submitted that the State has no serious objection in quashing the proceedings against them in view of the settlement arrived at between the parties. 7. I have considered the submissions advanced and have gone through the records. Crl.MC.No.8082 OF 2016 5 8. The factors that are to be borne while exercising powers conferred on this Court by Section 482 of the Code in the context of considering a prayer for quashing criminal proceedings on the basis of resolution of disputes between the offender and the victim have been laid down by the Apex Court in **Gian Singh v. State of Punjab and Anr** .[1] ; **Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another[2]** ; **Narinder Singh and Others v. State of Punjab and Another[3]** ; **Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another[4]** and **State of Madhya Pradesh v. Laxmi Narayan and others[5]** . It was held that the inherent jurisdiction vested in the High Court, as recognized and preserved by Section 482 of the Cr.P.C, is primarily to prevent abuse of the process of court or to secure the ends of justice. The guiding light behind the exercise of inherent power is to do real, complete and substantial justice. It was also held that while examining the prayer for quashing of a non compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, this Court must necessarily consider whether the possibility of conviction is remote and oblique and further as to whether the continuation of the criminal proceedings would lead to oppression and prejudice. The courts were reminded that the antecedents of the accused, possible lack of bona fides, his past 1 [(2012) 10 SCC 303] 2 [(2013) 4 SCC 58] > 3 [(2014) 6 SCC 466] > 4 [(2017) 9 SCC 641] > 5 [(2019) 4 SCALE 200] Crl.MC.No.8082 OF 2016 6 conduct, including his earlier abscondance, and as to how he had managed to enter into a compromise with the victim are some of the factors which are to reckoned while exercising this extraordinary power. The Apex Court had also cautioned that this Court, when called upon to exercise the power under Section 482 of the Cr.P.C to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in heinous or serious offences, including those involving mental depravity, as indeed economic offences affecting the financial and economic well being of the State, such as murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc. Those offences were held as having a tendency to have a serious impact upon the society and continuation of trial thereof is essential due to overriding element of public interest. 9. In the light of the above principles, I have perused the prosecution records. Having considered the case in hand on the touchstone of the aforementioned parameters, I am of the view that quashing of proceedings on account of compromise would bring about peace. In a case such as the instant one, even if the prosecution is allowed to continue, it would not serve any purpose as the possibility of conviction is remote and bleak. It can only result in putting the victim and the accused to unwanted oppression and prejudice. Settlement will augur well for the interest of the community and will enable the Crl.MC.No.8082 OF 2016 7 parties to live in peace and harmony. In the result, this petition is allowed. Annexure-A3 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.958 of 2016 on the file of the Judicial First Class Magistrate Court, Maradu, are quashed. SD/- **RAJA VIJAYARAGHAVAN V., JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MC.No.8082 OF 2016 8 **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.I, KOCHI AS C.M.P NO.686/2015 DATED 21.02.2015.** **ANNEXURE A2 TRUE COPY OF THE FIR IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 12.03.2015 ANNEXURE A3 TRUE COPY OF THE FINAL REPORT FILED IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 13.07.2015.** **ANNEXURE A4 TRUE COPY OF THE REPORT FILED IN CRIME NO.236/2015 BY THE SUB INSPECTOR OF POLICE, MARADU. ANNEXURE A5 TRUE COPY OF THE STATEMENT GIVEN BY THE DEFACTO COMPLAINANT IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 12.03.2015. ANNEXURE A5(A) TRUE COPY OF THE STATEMENT GIVEN BY THE DE FACTO COMPLAINANT IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 13.07.2015. ANNEXURE A6 TRUE COPY OF THE STATEMENT GIVEN BY SATHAR IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 20.03.2015. ANNEXURE A6(A) TRUE COPY OF THE STATEMENT GIVEN BY KABEER IN CRIME NO.236/2015 OF MARADU POLICE STATION DATED 13.07.2015. ANNEXURE A7 TRUE COPY OF THE STATEMENT OF ACCOUNTS OF M/S.MAGMA FINCORP LTD AS REGARDS THE LOAN FOR VEHICLE NO.KL 41/E 261 AS ON 24.12.2015 ANNEXURE A8 TRUE COPY OF THE STATEMENT OF ACCOUNTS OF M/S MAGMA FINCORP LTD AS REGARDS THE LOAN FOR VEHICLE NO.KL 41/E 8667 AS ON 24.12.2015 ANNEXURE A9 TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.12769/2014 DATED 02.07.2014.**