MANISH K.A. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938** ## **Crl.MC.No. 74 of 2016** **-------------------------------------** **CRIME NO. 756/2015 OF KOIPURAM POLICE STATION , PATHANAMTHITTA** **----------------------** ## **PETITIONER(S)/ACCUSED :** **------------------------------------------** **MANISH K.A., AGED 31 YEARS, S/O.KUNJUMANI, ALUMTHURAYIL HOUSE, KULASHEKHARAMANGALAM P.O., KOTTAYAM DISTRICT.** **BY ADVS. SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.P.A.ABHILASH** ## **RESPONDENT(S)/COMPLAINANT :** **---------------------------------------------------** **1. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KOIPURAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. NIDHIN C. ABRAHAM, CHIRAPURATHU HOUSE, KURIANNOOR P.O., PATHANAMTHITTA.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADV. SRI.T.P.PRADEEP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 74 of 2016** **---------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A1: A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT.** **ANNEXURE A2: A TRUE COPY OF THE FIR NO. 756/2015. ANNEXURE A3: A TRUE COPY OF THE ORDER DATED 15.10.2015 IN B.A NO.5981/2015.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 74 of 2016 - - - - - - - - - - - - - - - - Dated 10[th] June, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioner is arrayed as the 2[nd] accused in Crime No.756 of 2015 of the Koipuram Police Station registered for offence punishable under section 420 , 120B read with Section 34 of the IPC. The said crime was registered on the basis of a complaint filed by the 2[nd] respondent ( hereinafter referred to as the complainant ) which was referred to the Police under Section 156 (3) of the Code of Criminal Procedure. - 2.The allegations in Annexure A1 complaint can be summarized as follows:- The accused No 1 and 3 approached the complainant and offered to sell a tourist bus of Ashok Leyland make, bearing temporary Registration No KL -07-BG T.P. 1679. After negotiations, he agreed to purchase the bus for a Crl.M.C. No.74 of 2016 -2- total consideration of Rs.29,50,000/-. On 4.3.2015 an agreement was entered into between the 1[st] accused and the complainant reducing the terms of their understanding and a sum of Rs.550,000/- was paid to the 1[st] accused towards part of sale consideration. The repeated demands of the complainant to hand over the registration certificate and tax token fell on deaf ears which raised a strong hint of suspicion in his mind. His enquiries revealed that the registration of the bus stood in the name of the petitioner herein. He immediately got in touch with the petitioner and demanded that the possession of the vehicle be handed over. To his dismay, the petitioner demanded a sum of Rs.31,00,000/- which was in excess of the sum of Rs.29,50,000/- which was agreed by the 1[st] accused as per the agreement. On these allegations complaint was filed and crime was got registered. - 3.I have heard the learned counsel appearing for the petitioner, the 2[nd] respondent and the Public Prosecutor. - 4.The contention of the learned counsel is plain and simple. Crl.M.C. No.74 of 2016 -3- Referring to Annexure A1 complaint, it is contended that it was the accused No 1 and 3 who had met the complainant, negotiated the deal, accepted the advance money and entered into the agreement. These are undisputed facts. The petitioner comes into the picture only when the accused No 1 and 3 failed to honor the agreement. The petitioner admittedly is the owner of the bus and the only allegation is that he had demanded a sum of Rs.31,00,000/- for transfer of the vehicle. This by no stretch of imagination will not make out an offence against him, is in essence the submission of the counsel. The learned Counsel also relies on the Judgment of the Apex Court in **Ram Biraji Devi & Another v. Umesh Kumar Singh & Another (AIR 2006 SC 2035)** , to contend that if the allegations in the complaint is accepted in its entirety no offence under Sections 420 and 120B read with Section 34 of the IPC is made out against the petitioner. 5.The learned counsel appearing for the 2[nd] respondent Crl.M.C. No.74 of 2016 -4- refuted the contention of the petitioner and submitted that the petitioner is also a party to the transaction and this fact will be evident by the fact that the application seeking pre-arrest bail was preferred by the petitioner and the 3[rd] accused jointly. It is also submitted by the learned counsel that the investigation is at the infant stage and this is not one of those rare cases where this Court should venture to quash the proceedings as the facts are hazy. This Court normally would not sift and weigh the evidence, as it is the function of the Trial Court. 6. I have heard the rival submission and gone through Annexure A1 complaint filed by the 2[nd] respondent before the learned Magistrate. The said complaint would reveal that the transactions involving the sale of the bus was between the 2[nd] respondent and accused Nos.1 and 3. The only role attributed to the petitioner herein is that after the transaction had failed the 2[nd] respondent had received information that the bus was owned by the petitioner herein. Other than these allegations, there is absolutely Crl.M.C. No.74 of 2016 -5- - no whisper in the complaint that the petitioner had any role to play in the act committed by accused Nos.1 and 3. 7. When there are no materials in the complaint which makes out any role to the petitioner, it will amount to travesty of justice to ask the petitioner to stand trial for the acts of accused No 1 and 3. After closely scanning Annexure A 1 complaint it does not appear to me that there is any allegation as against the petitioner herein that he was a party to the acts of accused No 1 and 3. - 8.It is by now settled that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under S.482 of the present Code. **(See Municipal Corporation of Delhi V R.K. Rohatgi AIR 1983 SC 67 ).** Crl.M.C. No.74 of 2016 -6- 9.The Apex Court in **Medchl Chemicals and Pharma (P) Ltd v. Biological E. Ltd (2000 (3) SCC 269)** , had occasion to discuss at length about the scope and ambit of powers under Section 482 of the Code. It was held as ## follows :- “ _Exercise of jurisdiction under the inherent power as envisaged in S.482 of the Code of Criminal Procedure, 1973, to have the complaint or the charge sheet quashed is an exception rather in rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and henceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount”_ ## 10.Having regard to the facts and circumstances and having gone through Annexure A1 complaint and also the Crl.M.C. No.74 of 2016 -7- allegations contained therein, I am of the view that insofar as the petitioner who is arrayed as the 2[nd] accused is concerned there is total absence of materials to connect him with the crime. I firmly hold that the continuance of proceedings is nothing but an abuse of process of law. In the result the petition is allowed. All further proceedings against the petitioner herein who is the 2[nd] accused in Crime No.756 of 2015 of Koipuram Police Station shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-14.6.16