NITYANAD and KAMALESH v. POULOSE and THE STATE OF KERALA, and ADDL. R3 & ADDL. R4

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** # **FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938** ## **Crl.MC.No. 6588 of 2016 ()** **--------------------------CRIME NO. 1799/2016 OF CHALAKKUDY POLICE STATION INITIATED AT THE INSTANCE OF CRIME NO.1715/2016 OF PANDALAM POLICE STATION.** **.....** ## **PETITIONERS/ACCUSED 1 AND 2:** **---------------------------------------------------** **1. NITYANAD, S/O. KANDASWAMI, AGED 41 YEARS, B-884, DERA GANJIKHAN, PARWANA ROAD, SARASWATHI VIHAR POST, MANGALPURI, NEW DELHI.** **2. KAMALESH,** - **S/O. SHIVDAYAL, AGED 31 YEARS,** - **N-119/42, DERAGAJI KHAN, PARWANA ROAD, SARASWATHI VIHAR POST, MANGALPURI, NEW DELHI, CENTRAL DELHI, INDIA.** ## **BY ADV. SRI.A.C.DEVY.** ## **RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------** **1. POULOSE, AGED 56 YEARS, S/O. THOMAS, MALIYEKKAL, VACHALAKKAL HOUSE, MUKUNDAPURAM, ELANJIPARA. P.O., THRISSUR DISTRICT, PIN-680 721.** **2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **ADDL. R3 IMPLEADED** **3. SANJAI, AGED 27 YEARS, S/O. RAJA RAAM, HOUSE NO.111/59, 10TH BLOCK, PARVANA ROAD, PEETHAMPURA, NEW DELHI-34.** - **IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 21/10/2016 IN CRL.MA. NO.10932/2016 IN CRL.MC. NO.6588/2016.** **Crl.MC.No. 6588 of 2016** ## **** ADDL. R4 IMPLEADED** **4. PRIJU @ PRIJU EAPEN, AGED 32 YEARS, S/O. EAPEN THOMAS, THOTTATHIL MALAYIL HOUSE, PERUMBRAMAVU, KEEZHVAIPPOOR, MALLAPPALLY VILLAGE, PATHANAMTHITTA DISTRICT, NOW RESIDING AT V-A, 3RD FLOOR, GALI NO.VI, KAROL BAG, NEW DELHI-110 003.** **** IS IMPLEADED AS ADDL. R4 AS PER ORDER DATED 21/10/2016 IN CRL.MA. NO.10896/2016 IN CRL.MC. NO.6588/2016.** **R2 BY PUBLIC PROSECUTOR SRI.T.R. RENJITH. ADDL. R3 BY ADV. SRI.P.JAYAN TOMY. ADDL. R4 BY ADV. SRI.S.SHANAVAS KHANS.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. **Crl.MC.No. 6588 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A A TRUE COPY OF THE FIR OF CHALAKUDY POLICE STATION IN CRIME.1799/2016. ANNEXURE B A TRUE COPY OF THE FIR OF PANDALAM POLICE STATION IN CRIME.1715/2016. ANNEXURE C THE TRUE COPY OF THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6588 of 2016 ----------------------------------------Dated this the 21[st] day of October, 2016** ## **O R D E R** 1.The petitioners herein are the accused Nos.1 and 2 in Crime No.1799 of 2016 of Chalakudy Police Station. The aforesaid crime was originally registered as Crime No.1715 of 2016 of the Pandalam Police Station alleging offence punishable under Section 420 read with 34 of the IPC. Since the incident had taken place within the territorial limits of the Chalakudy Police Station, the case was transferred and the crime was re-registered. - 2.The prosecution allegation runs thus:- The petitioners herein and the 3[rd] accused were running a firm in the name and style as “Tirupathy Balaji Enterprises” at Delhi. They employed the 4[th] Crl.M.C.6588/2016 2 accused who in turn called the 1[st] respondent and several others over telephone and fraudulently informed them that they had been selected to the network of Samsung Mobile. They were made to believe that if they part with a sum of Rs.3,000/- on cash-on-delivery basis, they would be provided with a smart phone manufactured by Samsung worth Rs.25,000/-. It is further alleged that with intent to cheat, and after accepting a sum of Rs.3,000/-, a packet was delivered. On unpacking, it was revealed that it contained a small Aluminium Idol and also the image of a tortoise, which was of no value. Based on the information, a crime was registered as Crime No.1715 of 2016 of Pandalam Police Station. The petitioners were arrested on 26.7.2016 and on interrogation it was revealed that several other unsuspecting persons had been defrauded by the same Crl.M.C.6588/2016 3 modus operandi. On its basis, several crimes were later registered and the same was forwarded to the respective Police Station. It was on its basis that Crime No.1799 of 2016 of the Chalakkudy Police Station was registered. 3.The petitioners are still in custody. While so, the relatives and well wishers of the petitioners and the other accused contacted the 1[st] respondent and have have arrived at a settlement. It is submitted that the petitioners have made good the loss sustained by the 1[st] respondent and all the other persons who had been defrauded. In the instant case, Annexure-C affidavit sworn to by the 1[st] respondent/de facto complainant has also been filed. In the said affidavit it is asserted that all pending disputes have been settled and that the 1[st] respondent has no subsisting grievance. It is also stated that the 1[st] respondent has no objection in Crl.M.C.6588/2016 4 allowing this petition and in quashing the proceedings. 4. Separate applications have been filed by the accused Nos.3 and 4 to get themselves impleaded in the proceedings. The said applications were allowed and they have been added as additional respondents 3 and 4. 5. The learned counsel appearing for the petitioners, the 1[st] respondent and the learned Public Prosecutor were heard. 6.Learned counsel appearing for the petitioner submits that the petitioners are in custody and in view of the settlement arrived at, this Court will be amply justified in putting a premature end to the prosecution. It is also contended that the offence is compoundable in nature and when the de facto complainant has no grievance, no purpose will be served in continuing with the proceedings. Crl.M.C.6588/2016 5 7.The learned Public Prosecutor on instructions submits that the statement of the de facto complainant has been recorded by the investigating officer and he has stated that the disputes have been settled. It is also submitted that several other crimes have been registered against the petitioners and two others on identical allegations. 8.I have considered the rival submissions. 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 Crl.M.C.6588/2016 6 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 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. Or even offences arising out of matrimony relating to dowry etc. or family disputes where the wrong is basically private or personal. 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** Crl.M.C.6588/2016 7 **Others v. Mohana Kurup and Others** [AIR 2016 SC 2452]. 9.Various contentions justifying the acts of the petitioners and other accused are advanced by the learned counsel. Though the modus operandi adopted by the petitioners and respondents 3 and 4 to cheat unsuspecting persons cannot be accepted or condoned, taking note of the gravity of the allegation, the amount involved and the facts and circumstances, it does not appear to me that the offence alleged is 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 respondent No.1 has settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the 1[st] respondent to great oppression and prejudice. Crl.M.C.6588/2016 8 10.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. Though only the accused Nos. 1 and 2 have come up before this Court, in view of the fact that the whole matter has been settled, I am of the considered view that the benefits of settlement can also be extended to the accused Nos. 3 and 4 who have been arrayed as the respondents 3 and 4. In the result, this petition will stand allowed. All further proceedings as against the petitioners and additional respondents 3 and 4 in Crime No.1799 of 2016 of Chalakudy Police Station are quashed. The petitioners 1 and 2 are reported to be in prison at Thiruvananthapuram. If they are not required in connection with any other cases, they shall be released forthwith. **Sd/JUDGE** vps