Krishna Iyyer v. Natarajan V. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934 Crl.MC.No. 3205 of 2006 --------------------------CC.275/2006 of J.M.F.C.-III,TRIVANDRUM PETITIONER/ACCUSED: ------------------------- KRISHNA IYYER, AGED 55, S/O.ANANTHASIVA IYYER, ASST. GENERAL MANAGER STATE BANK OF TRAVANCORE, REGIONAL OFFICE, TRISSUR (RESIDING AT A7, CAPITOL HORRIZON, PUZHPAGIRI POOMKUNNAM, THRISSUR-2). BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS ## COMPLAINANT AND STATE: ------------------------------- ## 1. NATARAJAN V., KUZHIVILA VEEDU, NANNATTUKAVU, POTHANKODU P.O. THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY G.P.SMT.LOWSY THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-06-2012, THE COURT ON 28.6.2012 PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------Crl.M.C.No.3205 of 2006 ---------------------------------Dated this the 28[th] day of June, 2012 ## ORDER The petitioner is the accused in C.C.275 of 2006 on the file of the Judicial Magistrate of the First Class-III, Thiruvananthapuram. It is a summons case instituted by the first respondent alleging offences under Sections 294(b), 341, 323 and 506(1) IPC. Annexure-G is the complaint. The learned Magistrate after recording the statement of the first respondent and another, took cognizance for offences under Sections 294(b), 323 and 341 IPC. Process was ordered. Assailing the order taking cognizance, this petition under Section 482 of the Code of Criminal Procedure was filed seeking an order to quash Annexure-G complaint. 2. The case of the first respondent is that on 24.11.1980, he joined the service of the State Bank of Travancore as a Peon and that while working as Daftary Cum Cash Peon (DCCP) in the Bank at its branch at Bakery Junction, due to various illness the first respondent could not regularly attend the duty. On 30.10.2004 the Crl.M.C.No.3205 of 2006 2 petitioner served a charge sheet alleging unauthorised absence and asked the first respondent to appear before the Enquiry Officer. But he could not appear before the Enquiry Officer as he was hospitalized. Later, the first respondent was discharged from service. After discharge, neither any pension nor any retiral benefit was granted to the first respondent. The first respondent had no source of income for his survival. Therefore, on various occasions the first respondent approached the petitioner for releasing the pension and other retiral benefits, but was without any result. At 12.30 p.m. on 6.2.2006, the first respondent along with one Murukan, who was cited as a witness went to the office of the petitioner and asked about the pension and other retiral benefits. Then the petitioner stood up from his chair, caught hold of the collar of the shirt and wrongfully restrained without allowing the first respondent to go any place and uttered; 'bastard, the first respondent would not receive any pension benefits as long as the petitioner continued in the office'. Simultaneously, the first respondent was beaten at his cheek with hand. As a result, the first respondent fell down on the floor. No sooner the first respondent fell down than the petitioner kicked at the abdomen stating that in the event the first respondent entered the office any more with any Crl.M.C.No.3205 of 2006 3 request, he would be finished off. 3. The plea of the petitioner is that the first respondent was ill motivated as he was discharged from the service and to wreak vengeance, the case was falsely foisted and that on the alleged date of occurrence, the petitioner was on leave and was at Mumbai. Therefore, according to the petitioner, the allegations in Annexure-G complaint are with malafide and the proceedings were maliciously instituted with ulterior motive for wreaking vengeance and that allegations are inherently improbable on the basis of which no prudent person can overreach a conclusion that there was sufficient ground for proceeding against the petitioner. In support of the above plea, the petitioners would rely upon Annexure A to F. The decision reported in State of Hariyana and others v. Bhajan Lal and others (AIR 1992 SC 604) was relied on. Though notice was issued to the first respondent he did not turn up. 4. In addition to the learned counsel appearing for the petitioner, the learned Government Pleader was also heard. The documents appended were also perused. Crl.M.C.No.3205 of 2006 4 5. Annexure -A is a preliminary order dated 30.10.2004 passed in the matter of the disciplinary proceedings initiated against the first respondent by the disciplinary authority, the Assistant General Manager-I. Annexure-B is the final order dated 15.12.2004. Annexure-C is the order of the Appellate Authority in the departmental disciplinary action against the first respondent. It is not dated, but issued by the Deputy General Manager (Appellate Authority). Annexure-D is an application dated 4.1.2006 whereby the petitioner applied for privilege leave with effect from 4.2.2006 to 15.2.2006. Annexure-E is the note of the Chief Manager (Administration) dated 16.1.2006 recommending the request for leave applied through Annexure-D. Annexure-F is a certificate dated 28.8.2006 issued by the Deputy General Manager certifying that the petitioner had availed the sanctioned privilege leave from 4.2.2006 to 15.2.2006. The decision reported in ING Vysa Bank Ltd. v. Sub Inspector of Police (2011(2) KLT 621) was relied upon in support of the argument that in a proceeding under Section 482 of the Code of Criminal Procedure, in exceptional circumstances, documents produced by the petitioner can be looked into. Crl.M.C.No.3205 of 2006 5 6. Annexures-A, B and C were relied upon to establish that as on the date of the offence alleged the disciplinary proceedings were over and that pension and other retiral benefits were granted to the first respondent. Therefore, there was no occasion for the first respondent to come to the office of the petitioner requesting for release of the pension and other retiral benefits. As I mentioned earlier Annexures A and B are dated 30.10.2004 and 15.12.2004. But Annexure-C is not dated. Therefore, even going by Annexure-C, it is not possible to come to a conclusion that the disciplinary proceedings initiated against the first respondent were over as on the date of occurrence. Even if it is assumed that the disciplinary proceedings were over before the date of occurrence, there is nothing on record to come to a conclusion that the pension or other retiral benefits were sanctioned and released to the first respondent so that there may not be any occasion for the first respondent to go to the office of the petitioner enquiring about pension and the retiral benefits. Therefore, Annexure-A to C are not at all reliable to come to a conclusion that there was no occasion for the first respondent to go to the office of the petitioner on the alleged date of occurrence and having the offence alleged committed. Crl.M.C.No.3205 of 2006 6 7. Annexure-D to F were relied upon in support of the plea of alibi that the petitioner was on privilege leave from 4.2.2006 and had gone to Mumbai. Though Annexure-D to F would show that privilege leave was granted and availed from 4.2.2006 to 15.2.2006 to go to Mumbai for personal matters, there is nothing on record to come to a conclusion that the petitioner had really left the station. The learned counsel for the petitioner would submit that there are documents to establish that the petitioner had travelled from Thiruvananthapuram to Mumbai by train. But no document was produced to establish that the petitioner had actually travelled from Thiruvananthapuram to Mumbai during the leave period. Plea of alibi is a defence to be established by an accused by adducing reliable evidence. For the reason stated earlier, though the petitioner had succeeded to bring out that the petitioner was on leave from 4.2.2006 to 15.2.2006, there is no material to conclude that the petitioner was at Mumbai during the said period. Therefore, Exts.D to F are not at all reliable to find the plea of alibi in favour of the petitioner at this stage. The petitioner being a responsible officer of the high rank, even if he was on leave, the possibility for the petitioner coming to the office in the event there was any urgent requirement cannot be ruled out.Therefore, in the given set of facts, Crl.M.C.No.3205 of 2006 7 it couldn't be said that the petitioner was absent in the office and to conclude that the crime alleged is improbable. 8. Carefully going through the averments in Annexure-G complaint, I find that the averments in the complaint are sufficient enough to take cognizance. In support of the averments in the complaint, the petitioner had given sworn statement. In addition to that, the statement of a witness was also recorded. Curiously, the copies of the statements of the witnesses were not made available. The petitioner has no case that the statements of the first respondent and the witness recorded by the learned Magistrate do not disclose the offence for which the cognizance was taken. Therefore, with the materials on record, I am persuaded to conclude that the plea of the petitioner that the allegation in the complaint are so absurd or inherently improbable on the basis of which no prudent person can overreach a conclusion that there is sufficient ground for proceeding against the accused or to conclude that the prosecution was launched with malafide or maliciously instituted with an ulterior motive to wreak vengeance due to private and personal grudge. Therefore, the guidelines of the decision in Bhajan Lal's case (supra) has no application. Since the averments in the Crl.M.C.No.3205 of 2006 8 complaint are sufficient enough to take cognizance for the above said offence, I find that this petition is devoid of merits. In the result, this petition is dismissed without prejudice to the defence of the petitioner. The trial court is directed to dispose of the case without being trammelled by the observations in this order. The observations in this order about the document are made without referring to the oral evidence and only for the purpose of disposal of this petition. The trial court shall consider the documents on merits with reference to the oral evidence that may be adduced. The petitioner shall appear before the trial court on 23.7.2012 or on the next posting date, whichever is earlier. P.S.GOPINATHAN, JUDGE cms