Koyamma M.P. and Muhammed Rasheed v. State of Kerala and Central Services Co-Operative Society

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938** ## **Crl.MC.No. 6326 of 2016 ()** **--------------------------CRIME NO. 114/2016 OF ERNAKULAM TOWN SOUTH POLICE STATION. ........** **PETITIONERS/ACCUSED NO.1 & 2:** **----------------------------------------------------** **1. KOYAMMA. M.P., AGED 49 YEARS, S/O. AHAMMED, MULLAPURA HOUSE, ANDROTH ISLAND, LAKSHADWEEP.** **2. MUHAMMED RASHEED, AGED 24 YEARS, S/O NALLAKOYA, PALLIYATH HOUSE, ANDROTH ISLAND, LAKSHADWEEP.** **BY ADVS.SRI.P.P.BIJU, SMT.M.B.SHYNI.** ## **RESPONDENTS/STATE & COMPLAINANT :** **-------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. M.R. VASANTHI, AGED 52 YEARS, SECRETARY, CENTRAL SERVICES CO-OPERATIVE SOCIETY, RAVIPURAM, ERNAKULAM DISTRICT.** **3. CENTRAL SERVICES CO-OPERATIVE SOCIETY, RAVIPURAM, REPRESENTED BY SECRETARY, RAVIPURAM, ERNAKULAM DISTRICT-682 016.** **R1 BY PUBLIC PROSECUTOR SRI.T.R. RENJITH. R2 & R3 BY ADV. SRI.RADHIKA RAJASEKHARAN P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 6326 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** |**ANNEXURE I:**|**CERTIFIED COPY OF THE FINAL REPORT IN**| |---|---| ||**CRIME NO.114/2016 OF ERNAKULAM TOWN SOUTH**| ||**POLICE STATION, ERNAKULAM DISTRICT.**| |**ANNEXURE II:**|**ORIGINAL OF THE AFFIDAVIT SWORN BY THE**| ||**2ND RESPONDENT.**| **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No.6326 of 2016** -----------------------------------------Dated this the 14[th] day of October, 2016 ## **O R D E R ~~~~~~~~** - 1.The petitioners herein are the accused Nos. 1 and 2 in Crime No.114 of 2016 of Ernakulam Town South Police Station registered for offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code. Final report was laid after investigation and the case is now pending as C.C.No.523 of 2016 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam. - 2.The crux of the prosecution allegation is that the petitioners with intent to cheat the 3[rd] respondent Society, where the 2[nd] respondent is working as Secretary, attempted to secure a loan by producing forged Crl.M.C. No.6326 of 2016 **-2-** documents and thereby committed the alleged offences. - 3.Heard the learned counsel appearing for the petitioners, the respondents 2 and 3 and also the learned Public Prosecutor. - 4.It is submitted by the learned counsel appearing for the respondents 2 and 3 that the 2[nd] petitioner has settled all the outstanding dues to the Society in respect of loan No.18557 and the Society does not wish or intend that the prosecution proceedings as against him, continue any further. It is further submitted that the respondents 2 and - 3 have no subsisting grievance and they have no objection in allowing this petition and quashing the proceedings. Annexure-II is the affidavit sworn to by the 2[nd] respondent asserting the above facts. - 5.Learned counsel appearing for the petitioners, on the other hand, would submit that in view of the amicable Crl.M.C. No.6326 of 2016 **-3-** resolution of all subsisting disputes, the continuance of criminal proceedings is nothing but an abuse of the process of law. - 6.The learned Public Prosecutor after getting instructions has expressed his reservations in the matter of quashing the proceedings on the basis of settlement. It is submitted that the invocation of powers under Section 482 of the Code in a case of this nature is not warranted. However, it is submitted that no other cases are reported against the petitioners. - 7.I have considered the rival submissions. The allegation is that the petitioners had attempted to secure a loan on the strength of forged documents. It is borne out from Annexure-II that the petitioners have made good the loss to the Society and the party respondents have taken a decision not to proceed with the prosecution further. Crl.M.C. No.6326 of 2016 **-4-** 8.In **Gian Singh v. State of Punjab and Another** [2012 (10)SCC 303], the Apex Court has crystalised the position in respect of the powers vested in the High Court under S.482 of the Criminal Procedure Code, to quash criminal proceedings. It was held that the power vested in the High Court under Section 482 of the Criminal Procedure Code, is not limited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three - Judge Bench in the above case, clearly expounded, that quashing of criminal proceedings under S.482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing criminal Crl.M.C. No.6326 of 2016 **-5-** proceedings, was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. In all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in **Narinder Singh v. State of Punjab** [2014 (6) SCC 466] and recently in **Rajesh Kamath J. and Others v. Mohana Kurup and Others** [AIR 2016 SC 2452]. 9.The Apex Court in **CBI, ACB, Mumbai v. Narendra Lal** **Jain and Others** [2014 (5) SCC 364] has held in paragraph No.11 of the judgment as follows: “11.In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under S.482 CrPC. We Crl.M.C. No.6326 of 2016 **-6-** do not see how such exercise of power can be faulted or held to be erroneous. S.482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power available under S.482 CrPC it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under S.482 CrPC.” 10.Having considered the submissions and after going through the materials on record, it does not appear to me that the offence committed by the petitioners can be regarded as grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. More over, when the party respondents have settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case Crl.M.C. No.6326 of 2016 **-7-** against the petitioners would be a futile exercise. It would also put the petitioners and the 2[nd] respondent to great oppression and prejudice. 11.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-I, final report and all proceedings pursuant thereto against the petitioners now pending as C.C.No.523 of 2016 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/17/10/16