P. Gopinathan v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** ## **Crl.MC.No.3685 OF 2015** **CC 157/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE** **CRIME NO.792/2011 OF Nadakkavu Police Station, Kozhikode** **PETITIONER/ACCUSED:** **P.GOPINATHAN, AGED 63 YEARS S/O.GOPALAN NAIR, 23/1195, MANGALDEEP, THIRUVANOOR P O, KOZHIKODE, PRESENTLY RESIDING AT FLAT NO.12B, KATTICAREN KALPAKA, JMJ RESIDENCY, K.K.PADMANABHAN ROAD, ERNAKULAM 682018** **BY ADVS. SRI.P.SREEKUMAR SRI.P.A.MOHAMMED SHAH SMT.P.M.MAZNA MANSOOR SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA, THROUGH THE CIRCLE INSPECTOR OF POLICE, NADAKKAVU, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031** - ***ADDL KOULATH KAREEM, W/O. V P ABDUL KAREEM** - **R2 PLOT NO.4, CHEROOTTY NAGAR HOUSING COLONY PUTHIYAKARA P.O., KOZHIKODE, PIN-673004.** - **IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 23.7.2015 IN CRL.MA NO.6914/2015 IN CRL MC 3685/2015.** **R2 BY ADV. ASHOK B SHENOY R1 BY ADV.SRI. BINEESH. E.C., P.P.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-05-2020, THE COURT ON 02-06-2020 PASSED THE FOLLOWING:** ## **Crl.M.C.No.3685 of 2015** **==> picture [37 x 9] intentionally omitted <==** **“C.R.”** ## **Dated this the 2[nd] day of June, 2020** ## **O R D E R** The petitioner who is the 8[th] accused in C.C.No.157/2013 on the files of JFCM-IV, Kozhikode, charge sheeted for offences punishable under Sections 403, 406, 409, 417, 418, 424 read with Section 34 IPC, seeks to quash Annexure-1 final report under Section 482 of the Cr.P.C. 2. Annexure-1 was instituted by Circle Inspector of Police, Nadakkavu Police Station, on the basis of a complaint lodged before him by the 2[nd] respondent who is the de facto complainant. She and 1[st] accused in the crime are two partners who under a partnership agreement dated 28.04.2004 established “GMT computer” training institute in Kasaba within the limits of Kozhikode Corporation, incorporating terms and conditions as to sharing of ## **Crl.M.C.No.3685 of 2015** ## **:-3-:** profits and losses between them. A2 was appointed as the Manager of the Firm. The two partners opened an account in their joint names with Punjab National Bank, SM Street Branch, Kozhikode. A3 to A9 are the bank officials who cleared the cheques drawn against the account of the Firm at different periods since 2009 till 2011. 3. The allegation against the 1[st] accused, the partner is that he denied the de facto complainant's right to access the income and expenditure accounts and excluded her from the profits of the Firm illegally. He joined hands with A2 and made wrongful gain of Rs.20,82,120/- for himself by drawing 140 cheques against the joint account of the Firm without the knowledge of de facto complainant after influencing the Bank officials during the relevant period. 4. The accusation against A3 to A9 is that ## **Crl.M.C.No.3685 of 2015** ## **:-4-:** each of them misused his position as banker and with the intention of helping the 1[st] accused, cleared all the cheques drawn solely by him, against the interest of the de facto complainant. 5. The contention of the petitioner is that he is innocent of the accusation made in Annexure-1 final report but was indicted without any bonafides. He denied having had any association or occasion for any contact with the partners of the Firm since he was at the relevant period of time attached to the clearing house which dealt with only inter bank transactions. It is contended that his duty was limited to clearing and cross checking of cheques with the specimen signatures uploaded in the computer software after verifying the availability of balance at the credit of the customers. According to him, the specimen signature of the de facto complainant was not uploaded in the ## **Crl.M.C.No.3685 of 2015** ## **:-5-:** software of the bank and therefore he cannot be charged with the accusation of having misused the official position or having acted to the detriment of the de facto complainant, intending to cause wrongful loss to her. It was also submitted that either in Annexure-1 final report or any of the statements of witnesses appended to the report, there is no disclosure of any overt act allegedly committed by the petitioner. Nor is there any allegation that he acted dishonestly with the intention of committing wrongful loss to the de facto complainant. For these reasons, the learned counsel for the petitioner submitted that Annexure-1 cannot sustain under law and it ought to be quashed at least to the extent it arraigned him as accused. 6. I heard the learned counsel for the petitioner, the second respondent and also the ## **Crl.M.C.No.3685 of 2015** ## **:-6-:** learned Public Prosecutor. 7. It is true that neither the final report nor the statements of witnesses recorded by the Investigating Officer contain any specific allegation against the petitioner that he misappropriated or converted any of the amounts allegedly withdrawn from the account of the Firm for his personal or any other purpose. There is clear statement in the final report that the amounts withdrawn from the bank were utilised exclusively by the 1[st] accused and no accusation is made to the effect that the petitioner or any of the bank officials had gained any pecuniary advantage out of the transactions. 8. The sole allegation appears to be that the bank officials including the petitioner misused their official position and with the intention of unduly helping the first accused during the ## **Crl.M.C.No.3685 of 2015** **:-7-:** relevant periods, illegally honoured the cheques presented to them acting against the interest of the de facto complainant. Once this allegation is accepted as true also, in my view, the sole charge among others, for which the petitioner is liable to be proceeded may not extend beyond Section 409 IPC. This Section shall necessarily be read subject to Section 405 IPC which defines criminal breach of trust. 9. The necessary ingredient _inter alia_ to constitute an offence of criminal breach of trust is proof of dishonest intention of the trustee who could be a banker also. It is not necessary that the trustee should misappropriate or convert the property in possession to his use to attract commission of an offence of criminal breach of trust and when closely read, Section 405 IPC would evince that it would nonetheless apply if the ## **Crl.M.C.No.3685 of 2015** ## **:-8-:** property in the possession of the trustee is shown to be disposed of by him in breach of the mode for discharge of the trust. That means, even if the amounts encashed were not utilised for the personal or other uses of the banker, he would be committing an act of criminal breach of trust even if he disposed it of in any manner with least benefit ensuring to him. The general words 'disposes of that property in violation of any direction of law', used in Section 405 go to fortify this view. Even going by Section 24 IPC also which defines the term 'dishonestly', it is not necessary that the offender should have made any gain out of his action and it is enough if his act of disposal of property resulted in wrongful loss to a person. In short, if it is shown that cheques were drawn by the first accused to the exclusion of the de facto complainant against the joint account maintained by ## **Crl.M.C.No.3685 of 2015** **:-9-:** the Firm, that by itself is sufficient to constitute criminal breach of trust notwithstanding that the petitioner did not make wrongful gain out of it, provided the prosecution could also establish that such act was preceded by guilty intent and consequently wrongful loss was caused to the de facto complainant. This being the legal position, the decisions cited by the learned counsel for the petitioner in _**M.K.Suresh Kumar and**_ _**Ors. v. State of Kerala**_ [MANU/KE/0994/2019], _**Javedakhtar Mohmed Mirza v. State of Gujarat and Ors.**_ [MANU/GJ/1839/2017], _**Narendra Pratap Narain Singh and Ors. v. State of U.P.**_ [MANU/SC/0331/1991], _**Kailash Kumar Sanwatia v. State of Bihar and**_ _**Another**_ [2003 KHC 1541], _**Radha Pisharassiar Amma v. State of Kerala**_ [2007(4) KHC 679] cannot hold good in the facts of this case. 10. It may be true as contended by the ## **Crl.M.C.No.3685 of 2015** **:-10-:** petitioner that as a bank official, he was confined to clearing house where he may not have had any personal access to any of the partners of the Firm. The contention of the learned counsel for the petitioner that the specimen signature of the de facto complainant was not uploaded in the computer software for comparison of her signature in the cheques and therefore, no charge of dereliction of duty or assumption of any dishonest intention could be imputed or drawn against the petitioner is not capable of acceptance at this stage since these being disputed facts, are matters for trial. None of the bank officials questioned is seen to have told the police that computer software maintained in the clearing house did not upload the signature of the de facto complainant. Nevertheless the curious fact remains that cheques unsigned by a joint account holder were cleared by the bank ## **Crl.M.C.No.3685 of 2015** **:-11-:** officials against usual banking practice and procedure without any justification. This act of the petitioner necessarily constitutes breach of trust. 11. There is difficulty at this stage to accept the argument of the leaned counsel for the petitioner that clearing of such cheques against the banking procedure only amounted to mere dereliction of duty of the official for which he is liable only to be proceeded under the law of disciplinary proceedings. In this connection, the learned counsel for the second respondent relied on a decision in _**Chandrasekharan Nair M.K. v. State of Kerala**_ [2015 KHC 5266]. 12. I am satisfied that there are materials which could _prima facie_ establish the allegations of entrustment and breach of trust. What further remains is only whether the alleged conduct of the ## **Crl.M.C.No.3685 of 2015** **:-12-:** petitioner was actuated by an intention to cause wrongful loss to the de facto complainant. Wrongful loss assessed as per prosecution case is to the tune of Rs.20,82,120/-. This amount may not be sometimes as precise as alleged. Yet it is not fair to deny prosecution an opportunity to prove the loss alleged at the stage of trial. Annexure-4 copy of customer ledger relied on by the learned counsel for the petitioner, as rightly indicated by him, shows that most part of the amounts withdrawn from the joint account were spent for discharge of recurring debts of the Firm. Even if it is a single penny of loss that was caused to de facto complainant, it is, in my view, nevertheless wrongful provided the intention of the clearing bank official is shown to have been preceded by guilty intention. There appears to be no direct evidence to establish what was the intention of the ## **Crl.M.C.No.3685 of 2015** ## **:-13-:** petitioner. The learned prosecutor, however, relied on a few circumstances in this regard. Some of such circumstances could be culled out from the statements of de facto complainant herself and bank officials recorded by the Investigating Officer. 13. In the statement of de facto complainant, she said that she came to learn for the first time on 16.09.2010 that amounts were withdrawn from the joint account of the Firm by the first accused without her concurrence influencing the bank managers. She, therefore, immediately issued letter to the bank seeking freezing of the joint account. She said that even her request was ignored and when the bank went on honouring cheques behind her back, she repeated her request in writing on 05.03.2011 when the account was for the first time freezed. 14. One of the bank officials when questioned also conceded that account was freezed following ## **Crl.M.C.No.3685 of 2015** ## **:-14-:** letter dated 05.03.2011. Another bank official said that there was an attempt made by the first accused with the bank authorities for allowing him to operate the account single handedly. But the letter so addressed by first accused in the month of December, 2008 was rejected by the bank. CW3, the Manager in his statement expressed his inability to make out as to how cheques drawn against joint account could have been honoured without the concurrence of the de facto complainant. According to him, the officials who cleared the cheque were carried away by the general reputation of the Firm as well as the approved seal impression affixed over the cheque leaves. 15. Even if there is no specific allegation against the petitioner that he acted with any dishonest intention, the conduct of all the bank officials and circumstances involved around the ## **Crl.M.C.No.3685 of 2015** ## **:-15-:** clearing of cheques have to be taken as a whole. In my opinion, it is difficult at this stage to reject the prosecution allegation that breach of trust led to pecuniary loss and it was preceded by _mens rea_ . I find it hard to uphold the contention of the petitioner at this stage that he did not commit criminal breach of trust nor did he act with any dishonest intention. In my opinion, petitioner is liable to stand trial at least for offence punishable under Section 409 of the IPC. In the circumstances of the case and in the light of the inputs on record, it is not fair at this stage to order Annexure-1 final report to be quashed as against the petitioner. In the result, petition fails and it is dismissed. The court below will proceed to frame charge against the petitioner after hearing him and the prosecution in accordance with law and proceed ## **Crl.M.C.No.3685 of 2015** **:-16-:** to dispose of the case finally in accordance with facts, evidence and law untrammelled by the discussion made by me in this order. I make it clear that discussion made in this order was intended solely for the purpose of disposing of this proceeding for quashment and I did not express any view on merits affecting the final outcome of the case. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ ## **Crl.M.C.No.3685 of 2015** **:-17-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE-1**|**THE CERTIFIED COPY OF THE FINAL REPORT**| |---|---| ||**SUBMITTED BY THE POLICE IN CRIME**| ||**NO.792/2011 OF NADAKAVU POLICE STATION**| |**ANNEXURE-2**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**EVIDENCE PRODUCED BY THE POLICE ALONG**| ||**WITH THE ANNEXURE-1 FINAL REPORT**| |**ANNEXURE-3**|**A TRUE COPY OF THE STATEMENTS OF THE**| ||**WITNESS RECORDED UNDER SECTION 161 OF**| ||**THE PROCEDURE CODE**| |**ANNEXURE-4**|**TRUE COPY OF THE CUSTOMER LEDGER**| ||**REPORT/ACCOUNT STATEMENT FROM 01.01.2009**| ||**TO 08.10.2011 MAINTAINED IN THE JOINT**| ||**ACCOUNT OF THE 1ST ACCUSED AND THE DE**| ||**FACTO COMPLAINANT**|