K.J. Hubert v. Sub Inspector of Police, Harbour Police Station, Willington Island, Kochi; Bank of Baroda, Willington Island Branch, Kochi; State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **Crl.MC.No. 5152 of 2014** **FOR QUASHING ANNEXURE NO.1 FINAL REPORT IN CC 393/2010 PENDING BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT-1, ERNAKULAM** ## **PETITIONER/ACCUSED NO.4:** **K.J. HUBERT, AGED 48 YEARS, S/O.K.J.JOSEPH, RESIDING AT KADEVALAPPIL HOUSE, WATER LAND ROAD, PALLURUTHY, KOCHI - 682 006.** **BY ADV. SRI.R.O.MUHAMED SHEMEEM** ## **RESPONDENTS/DEFACTO COMPLAINANT:** **1 SUB INSPECTOR OF POLICE HARBOUR POLICE STATION, WILLINGTON ISLAND, KOCHI - 3. 2 BABU C.K SENIOR BRANCH MANAGER, BANK OF BARODA, WILLINGTON ISLAND BRANCH, KOCHI - 3. 3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.K.M.ANEESH FOR R2 SRI.ADARSH KUMAR PUBLIC PROSECUTOR SMT.MAYA.M.N.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 04.04.2019 PASSED THE FOLLOWING:** ' **CR'** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.5152 of 2014 -----------------------------------------Dated this the 4[th] day of April, 2019 ## **O R D E R** The petitioner is the fourth accused in the case C.C.No.393/2010 pending on the file of the Court of the Judicial Magistrate of the First Class-I, Ernakulam. The petition is filed by him under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') to quash the proceedings against him in the aforesaid case. 2. The petitioner was a customer of Bank of Baroda for so many years. He introduced accused 1 to 3 to the bank to enable them to open an account in the bank. Subsequently, accused 1 to 3 used credit/purchase facility given to them by the bank on the basis of the cheques issued by the fifth accused and obtained an amount of Rs.1,53,95,000/- from the bank. The cheques issued by the fifth accused were dishonoured. It is alleged that the accused had hatched a conspiracy to cheat the bank and cause loss to it and pursuant to such conspiracy, they Crl.M.C.No.5152/2014 3 cheated the bank. 3. The case against the accused was registered as Crime No.100/07 of Harbour Police Station, Kochi on the basis of the complaint filed by the Manager of the bank in the Magistrate's Court concerned, which was forwarded to the police for investigation under Section 156(3) of the Code. After completing the investigation, final report was filed against the accused for the offences punishable under Sections 420 and 406 read with 34 I.P.C and also under Section 120B I.P.C. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the second respondent, the manager of Bank of Baroda. 5. Learned counsel for the petitioner submitted that the only act committed by the petitioner was introducing the first accused to the bank to enable him to open an account in the bank and signing the account opening form for the first accused. Learned counsel submitted that the petitioner had no other role in the transactions between the bank and the other accused in the case. Learned counsel would contend that the mere act of Crl.M.C.No.5152/2014 4 the petitioner introducing another person to the bank to open an account in the bank will not attract the offences alleged against him. 6. On the other hand, learned counsel for the second respondent would contend that the petitioner had introduced the first accused to the bank with the dishonest intention of defrauding and cheating the bank and therefore, he has to face the trial. 7. I have perused copy of the chargesheet filed against the accused and also the statements of the witnesses recorded by the investigating officer which have been produced by the petitioner. I have also perused the report filed by the investigating officer with regard to the facts of the case revealed in the investigation. 8. Admittedly, the petitioner was a customer of the bank for so many years. The only allegation against the petitioner is that he introduced accused 1 to 3 to the bank to enable them to open an account in the bank. There is no allegation against the petitioner that he recommended granting of any loan or credit Crl.M.C.No.5152/2014 5 facility to the other accused. There is no allegation that it was on the strength of the introduction made by the petitioner that the bank granted credit/purchase facility to the other accused. There is no allegation against the petitioner that he made any false representation to the bank while introducing accused 1 to 3. There is no allegation that the petitioner had in any manner induced the manager of the bank to grant any loan or credit facility to accused 1 to 3. There is no allegation that the petitioner had obtained money from the bank out of the transactions between the bank and the other accused. There is no allegation that the petitioner had obtained any share of the money given from the bank to accused 1 to 3. There is no material indicating any transaction between the petitioner and the other accused. There is no material produced by the prosecution to prove that introduction of accused 1 to 3 to the bank by the petitioner was part of a conspiracy to cheat the bank. The statements given by the witnesses to the investigating officer are to the effect that the petitioner had only introduced accused 1 to 3 to the bank. Crl.M.C.No.5152/2014 6 9. It is a normal banking practice that a person who wants to open an account in a bank will have to get himself introduced by another account holder in the same bank. The mere act of introducing a person to a bank to enable such person to open an account in the bank, without anything more, does not attract the offence of cheating punishable under Section 420 I.P.C against the person who makes the introduction, even when the person introduced by him subsequently commits an act of cheating against the bank. 10. Authority for the aforesaid proposition can be had from the decision of the Apex Court in **Manoranjan Das v. State of Jharkhand** : **AIR 2004 SC 3623.** It was observed in that case as follows: _“It is argued that the appellant had introduced Loknath Acharya to start current account in the bank and there is no evidence to show that he had at any point of time acted in collusion with Loknath Acharya to commit any fraud. It was also submitted that introduction of the appellant in connection with Loknath Acharya to the bank_ Crl.M.C.No.5152/2014 7 _was on 26-5-1972 and the cheque for Rs. 27,000 withdrawn by Loknath Acharya only in the month of October 1972 and there is no evidence to show that the appellant had any business connection or collusion with Loknath Acharya. We perused the evidence produced by the prosecution and there is nothing on record to show that the appellant was in any way related to the fraud committed by Loknath Acharya on the bank. The prosecution did not even produce the form in which the appellant had signed for introducing Loknath Acharya for starting a current account with the bank. The evidence of the three witnesses also does not show any complicity of the appellant in committing any act of cheating. The appellant had introduced Loknath Acharya to the bank only for opening an account and that by itself does not spell out any fraud or cheating”._ 11. There is no allegation against the petitioner that he had received any money from the bank. Therefore, no question of dishonest misappropriation of any amount by him arises. 12. In the aforesaid circumstances, I am satisfied that prosecution of the petitioner for the offences alleged against him would be an abuse of process of the court. True, this Court Crl.M.C.No.5152/2014 8 should be circumspect and cautious while invoking the power under Section 482 of the Code to quash the proceedings in a case pending before the trial court. But, such power shall be exercised when it becomes necessary to prevent abuse of process of the court and miscarriage of justice. The prayer in the petition deserves to be allowed. 13. Consequently, the petition is allowed. The proceedings in the case C.C. No.393/2010 on the file of the Court of the Judicial Magistrate of the First Class-I, Ernakulam, as against the petitioner alone, are quashed. (sd/) **R.NARAYANA PISHARADI, JUDGE** jsr/03/04/2019 Crl.M.C.No.5152/2014 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A1 - CERTIFIED COPY OF FINAL REPORT IN CC NO. 393/10 BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT - I, ERNAKULAM.** **EXHIBIT P2** **A2 - TRUE COPY OF FIR IN CRIME NO. 100/07 OF HARBOUR POLICE STATION.** **EXHIBIT P3 A3 - TRUE COPY OF THE PARTNERSHIP DEED DT. 19.6.06 OF M/S. CAAN TRANSPORT AT WILLINGTON ISLAND.** ## **RESPONDENTS' EXHIBITS:** ## **NIL** TRUE COPY PS TO JUDGE