Krishna Prasad v. State of Kerala and Kaladevi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 31ST DAY OF JULY 2014/9TH SRAVANA, 1936 Crl.MC.No. 3256 of 2013 () --------------------------Crl.RP 9/2011 of SESSIONS COURT, ALAPPUZHA CMP NO.5281/2010 IN CC.694/2007 OF CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA PETITIONER(S)/2ND RESPONDENT IN CRL.RP/PETITIONER IN CC/ACCUSED: ------------------------------------------------------------ KRISHNA PRASAD, AGED 23 YEARS S/O.SWAMINATHAN, ANJANAM HOUSE, WARD NO.VI KADAKKARAPPALLY PANCHAYATH, ALAPPUZHA DISTRICT. BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S)/PETITIONER & 2ND RESPONDENT IN CRL.RP/RESPONDENT IN CC/STATE & 1ST ACCUSED: ----------------------------------------- ## 1. STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE ALAPPUZHA, THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. KALADEVI,, AGED 35 YEARS W/O.SACHU, UTHRADAM VEEDU, ASRAMAM WARD ALAPPUZHA MUNICIPALITY(IST ACCUSED). R2 BY ADV. SRI.K.N.VENUGOPALA PANICKER R1 BY PUBLIC PROSECUTOR SHRI N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3256 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE-A1 TRUE COPY OF FIR IN CRIME 440/07,DATED 31.07.2007 ANNEXURE-A1(a) TRUE COPY OF COMPLAINT DATED 27.07.2007,OF THE DE-FACTO COMPLAINANT PREFERRED BEFORE THE DEPUTY SUPERINTENDENT OF POLICE,ALAPPUZHA. ANNEXURE A1(b) TRUE COPY OF STATEMENT OF THE DE-FACTO COMPLAINT RECORDED BY THE C.I.OF POLICE,ALEPPEY NORTH ANNEXURE-A2 TRUE COPY OF FORM,DATED 29.06.2007 SIGNED BY THE DE-FACTO COMPLAINANT ANNEXURE-A3 TRUE COPY OF THE WITHDRAWAL FORM,DATED 30.06.2006 ANNEXURE-A4 TRUE COPY OF ORDER DATED 04.09.2002,IN B.A.5315/2007 ANNEXURE-A5 TRUE COPY OF REPORT,OF THE ALAPPUZHA DIVISION OF THE SUPERINTENDENT OF POST OFFICE ANNEXURE-A6 TRUE COPY OF ORDER,DATED 18.03.2009,IN CRL.M.C.886/09 ANNEXURE-A7 TRUE COPY OF FINAL REPORT,DATED 31.03.2010,IN CRIME NO.440/2007 ANNEXURE-A8 TRUE COPY OF COMMUNICATION,DATED 04.05.2009 ISSUED BY THE SUPERINTENDENT OF POST OFFICES,ALAPPUZHA DIVISION ANNEXURE-A9 TRUE COPY OF ORDER,DATED 02.02.2010 ISSUED BY THE UNION OF INDIA. ANNEXURE-A10 TRUE COPY OF THE ORDER DATED 31.01.2011,IN C.M.P.5281/2010 IN C.C.694/2007 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE,ALAPPUZHA ANNEXURE-A11 CERTIFIED COPY OF THE ORDER,DATED 12.04.2013 IN CRL.R.P.9/2011 PASSED BY THE LEARNED SESSIONS JUDGE,ALAPPUZHA. ANNEXURE-A12 TRUE COPY OF AGREEMENT,DATED 21.08.2007,ENTERED INTO BETWEEN THE DEFACTO COMPLAINANT AND A1 RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.3256 of 2013 -------------------------------------Dated this the 31[st] day of July, 2014.** ## **ORDER** Petition filed under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. Petitioner is the 2[nd] accused in Crime No.440 of 2007 of Alappuzha North Police Station registered under Sections 406, 420 and 409 read with Section 34 of the Indian Penal Code (in short, “IPC”). 3. Prosecution case, in short, is as follows: 1[st] accused in the crime is a mahila pradhan agent canvassing recurring deposits in a Post Office. 2[nd] accused was the Postmaster in charge of Thathampilly Post Office. The defacto complainant subscribed to a recurring deposit in the said Post Office. She had gone for a premature closure of the account. On 29.06.2007, the 1[st] accused obtained signature of the defacto complainant in a withdrawal slip for a sum of `1,84,704/- accrued in the recurring deposit. The amount was transferred to the savings bank account in the post office maintained in the name of the defacto complainant. 1[st] accused obtained another slip signed by the defacto complainant for withdrawing the amount from the savings bank account. Originally it was the case that the 1[st] accused, after withdrawing money 2 Crl.MC No.3256/2013 from the defacto complainant's account, misappropriated it and committed breach of trust and cheating. The investigation done revealed the complicity of the petitioner/2[nd] accused. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. Petitioner approached the learned Chief Judicial Magistrate, Alappuzha with C.M.P.No.5281 of 2010 in C.C.No.694 of 2007 claiming discharge under Section 239 Cr.P.C. After considering the matter, learned Magistrate discharged the petitioner finding that there was no material to prima facie think that the petitioner had done any misappropriation or breach of trust or cheating as alleged. The State took up the matter in criminal revision before the learned Sessions Judge, Alappuzha. Learned Sessions Judge set aside the order of the learned Magistrate and the matter was remitted to Magistrate for proceeding further. Aggrieved by the said order, petitioner/2[nd] accused has preferred this miscellaneous case. 6. Learned counsel for the petitioner submitted that at no point of time till 20.11.2008, the defacto complainant uttered a single word against the petitioner. Learned counsel drew attention of this Court to various statements of the defacto complainant recorded by the Police under Section 161 Cr.P.C., wherein all the accusations were levelled against the 1[st] accused. Annexure-A1(a) is the statement given by the defacto 3 Crl.MC No.3256/2013 complainant by her own and Annexure-A1(b) is the statement recorded by the Police. In both these statements, the defacto complainant had stated that the 1[st] accused received `1,84,704/- from the Post Office and appropriated the said amount for her personal use. It is the version of the defacto complainant that the 1[st] accused confessed that she used the money due to pressing necessity and it would be returned soon. It is also seen that the parties have entered into an agreement on 21.08.2007, whereby the 1[st] accused paid `1,25,000/- to the defacto complainant as full and final settlement of the amounts. 7. Learned Prosecutor submitted that the involvement of the petitioner in the crime was later revealed from the statement of the 1[st] accused. Thereafter, the CBCID started investigation into the matter. Case against the petitioner is that he was also a colluding party with the 1[st] accused to aid the latter to draw money from the savings bank account maintained by the defacto complainant. It is alleged by the learned Prosecutor that the money could not have been withdrawn by the 1[st] accused from the account of the defacto complainant without the active connivance of the 2[nd] accused. 8. I have carefully perused the case diary submitted by the learned Prosecutor, which was one reconstructed because the original case diary was lost. I do not find any material in the case diary to find that 4 Crl.MC No.3256/2013 the petitioner/2[nd] accused allowed the 1[st] accused to sign on the records on behalf of the defacto complainant. The materials produced by the petitioner would show that the accusation levelled by the defacto complainant is against the 1[st] accused only. The involvement of the petitioner/2[nd] accused comes up before the investigating agency for the first time after nearly 1 ½ years. It is the definite version of the defacto complainant that when she made enquiries in the Post Office, it was revealed that the amount was received by the 1[st] accused as authorised by the defacto complainant. Therefore, in the absence of any material to find that the 2[nd] accused was also involved in the misappropriation and cheating, the learned Magistrate was perfectly justified in finding that it is a fit case to discharge the accused under Section 239 Cr.P.C. 9. Learned counsel for the petitioner contended that the question of sanction under Section 197 Cr.P.C. was also considered by the learned Magistrate. Annexure-A8 is the letter issued by the Dy.S.P., Alappuzha seeking permission to prosecute the petitioner/2[nd] accused. Annexure-A9 is the reply sent by the Office of the Postmaster General, Central Region, Kochi declining the sanction for prosecution. It is mentioned in AnnexureA9 that they conducted a departmental enquiry into the matter and it was revealed that the 2[nd] accused was not responsible for the alleged defalcation of the amount. 5 Crl.MC No.3256/2013 10. Learned counsel for the petitioner relying on **Matajog Dobey v. H.C.Bhari and others (AIR 1956 SC 44)** contended that the object of Section 197 Cr.P.C. is to protect the public servants from harassment in the discharge of their official duties. Petitioner, according to the learned counsel, has only discharged his duty of crediting money to the account of the defacto complainant after getting proper vouchers and receipts. He has no connection with the withdrawal of the amount and it was done by the 1[st] accused. What he has done is only discharging his duty attached to his office. 11. Learned Prosecutor would submit that no sanction under Section 197 Cr.P.C. is required to prosecute the petitioner/2[nd] accused. In answer to this argument, learned counsel for the petitioner submitted that having sought sanction and having got it refused, the prosecution cannot turn round to say that no sanction was required. Whatever that be, there is no material to implicate the petitioner in the case even going by the allegations raised by the defacto complainant. Considering all the materials before me, I find no reason to see that the petitioner was also a participator in the alleged offences. Therefore, in this matter the decision of the learned Magistrate is the legally correct one. So much so, the order passed by the learned Sessions Judge is liable to be set aside. In the result, the petition is allowed. The order in Crl.R.P. No.9 6 Crl.MC No.3256/2013 of 2011 passed by the learned Sessions Judge, Alappuzha is set aside and the order passed by the learned Chief Judicial Magistrate, Alappuzha on C.M.P.No.5291 of 2010 in C.C.No.694 of 2007 is restored. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**