Prasanth and Shinob vs State of Kerala and Sujan

Crl.M.C.No.6789/18 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943_ ## _CRL.MC NO. 6789 OF 2018_ _AGAINST THE ORDER/JUDGMENT IN CC 470/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA_ ## _PETITIONER/S:_ _1 PRASANTH AGED 37 YEARS S/O GOPINATH, PONNAMKODE HOUSE, NEAR CHATTUKULAM TEMPLE, KODUGALOOR, ALUVA -683102._ _2 SHINOB AGED 38 YEARS S/O. JOSEPH, KARUPATH HOUSE, PUTHANPALLY VARAPUZHA - 683517._ _BY ADVS. M.A.AUGUSTINE K.P.SURAJ_ ## _RESPONDENT/S:_ - _1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031._ _2 SUJAN AGED 44 YEARS S/O. JAMES, POROTHOKARAN HOUSE, SAHAKARANA ROAD, EDAPPALLY, COCHIN-24._ Crl.M.C.No.6789/18 2 _BY ADVS. SRI.SANTHOSH G. PRABHU SRI.A.B.XAVIER_ _ADV. RANJIT GEORGE – SR. PP_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.6789/18 3 ## **O R D E R** This Crl.M.C. is filed challenging the proceedings pursuant to Annexure-A1 private complaint submitted by the 2[nd] respondent herein, which is now pending as C.C.No.470 of 2017 on the file of Chief Judicial Magistrate Court, Kakkanad. The petitioners herein are the accused Nos.1 and 2 in the aforesaid private complaint, and the cognizance is taken by the learned Magistrate for the offences punishable under Sections 448, 323, 506(1) read with 34 IPC. 2. The allegation against the petitioners is as follows; The 2[nd] respondent/complainant has borrowed certain amounts from the accused, and towards the security for the said transaction, some blank signed stamp papers and cheques were obtained from him. Even though, the amounts were repaid, the said documents were not returned., While so, on 21.02.2013, the petitioners allegedly came to the residence of the 2[nd] respondent and demanded a further sum of Rs 8 lakhs for returning the aforesaid documents. When the 2[nd] respondent refused to do so, he was assaulted. Crl.M.C.No.6789/18 4 3. Initially, Thrikkakkara Police registered Crime No.278 of 2013 against the petitioners herein alleging offence punishable under Sections 420, 448, 321, 323 read with 34 IPC and later Annexure-A2 final report was submitted referring the same as a false case. The annexure-A1 complaint was submitted thereafter, and the learned Magistrate has taken cognizance of the same. This Crl.M.C. is filed by the petitioners herein for quashing the proceedings in the aforesaid final report. 4. An objection was also submitted by the 2[nd] respondent/complainant to the Crl.M.C., wherein he opposed the contentions put forward by the de facto complainant. The case of the complainant is that he has borrowed an amount of Rs.1,05,250/- from the 1[st] petitioner and a further sum of Rs.10,00,000/- from the 2[nd] petitioner. At the time of borrowal, the petitioners have collected several cheque leaves and blank stamp papers. Later, even though the entire amount were repaid by the de facto complainant, they insisted for further payment for the purpose of returning the security documents collected from him. When the de facto complainant refused the payment of any further amount, the incident occurred. Crl.M.C.No.6789/18 5 5. Heard Sri.Augustine M.A., learned counsel for the petitioner, Sri.Santhosh learned counsel for the 2[nd] respondent / complainant, and Sri.Ranjit George, learned Public Prosecutor for the State. 6. The main contention put forward by the learned counsel for the petitioner is that the case is a fabricated one. The learned counsel mainly relies on the findings entered by the police in Annexure-A2 final report. It is pointed out that, as per the findings thereon, the tower locations of the mobile phones of the petitioners herein were in a different place, and they were not within the area where the incident took place. It is also pointed out that, one of the findings in Annexure-A2 final report is that, even though the incident occurred at 6.30 pm on 21.02.2013, the prescription issued by the doctor in the casualty of the General Hospital, Ernakulam indicates that the treatment availed by them was at 6. P.M on the very same date. The learned counsel for the petitioner relies on the finding in Annexure-A2 final report to the effect that the investigating officer could not find any evidence of the commission of the crime from the statements of any of the persons residing near the residence of the de facto complainant. Crl.M.C.No.6789/18 6 7. On the other hand, the learned counsel for the 2[nd] respondent would oppose the aforesaid contention. According to him, the incident as averred by him in the complaint has occurred, and he has every material in his possession to substantiate the same. It is pointed out that the contentions put forward by the petitioners herein are factual in nature, and the same cannot be considered during the course of proceedings under section 482 of the Cr.P.C., and hence he seeks for dismissal of the Crl.M.C. 4. The question that arises is whether the invocation of powers of this Court under Section 482 Cr.P.C. is warranted. The main contention put forward by the learned counsel for the petitioner is by placing reliance upon the finding of the police in Annexure-A2 final report. It is true that the police have entered into certain factual findings after conducting an investigation. However, merely because of that reason, the remedy of the de facto complainant to submit a private complaint against the same cannot be denied. It is a statutory right provided to him, and he has every right to invoke the same, irrespective of adverse findings in the police report. In **Vinay Tyagi v. Irshad Ali @ Deepak & Ors.[(2013) 5 SCC 762],** the Honourable Crl.M.C.No.6789/18 7 Supreme Court specifically held that the rights of persons to submit protest complaints when the report of the investigation submitted under Section 173(2) Cr.P.C. is against the de facto complainant could not be curtailed. In such circumstances, I do not find any reason to interfere with the proceedings pursuant to Annexure-A1, solely on the ground that there is an adverse final report against the 2[nd] respondent herein in respect of the offence alleged against the petitioners. 5. With regard to the other contentions of the petitioners, by placing reliance upon the prescription issued by the doctor who allegedly treated the 2[nd] respondent and also with respect to the tower locations, I am of the view that the said questions are factual matters which can only be considered during the course of the trial. While considering the application under Section 482 Cr.P.C., this Court has to proceed on the assumption that all the allegations raised in the complaint against the accused persons are correct and only if the uncontroverted allegations do not make out a case, interference is justified. In this case, on going through the averments contained, I do not find any situation warranting interference under section 482 Cr.P.C. It is also discernible from the records Crl.M.C.No.6789/18 8 that the learned Magistrate has taken cognizance of the matter after conducting an inquiry under Section 202 Cr.P.C. Thus, when all these aspects are taken into consideration, this Crl.M.C. is dismissed without prejudice to the contentions, rights and remedies of either party. It is made clear that the observations and findings made in this order were only to examine whether there is any scope for invoking powers under Section 482 Cr.P.C. The trial court can proceed with the matter and consider the same on merits untrammelled by any of the observations made in this Crl.M.C. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/15.3.22 Crl.M.C.No.6789/18 9 ## _APPENDIX OF CRL.MC 6789/2018_ _PETITIONER ANNEXURES_ _ANNEXURE A1 CERTIFIED COPY OF COMPLAINT IN CC 470/2017 IN THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD. ANNEXURE A2 COPY OF THE FINAL REPORT IN CRIME NUMBER 278/2013 OF THRIKKAKARA POLICE STATION._ _RESPONDENT ANNEXURES_ - _ANNEXURE R2(A) TRUE PHOTOSTAT COPY OF THE COMPLAINT. ANNEXURE R2(B) TRUE PHOTOSTAT COPY OF THE LAWYER NOTICE._ - _ANNEXURE R2(C) TRUE PHOTOSTAT COPY OF THE WOUND CERTIFICATE DATED 21.2.2013 ISSUED FROM THE GENERAL HOSPITAL ERNAKULAM._ - _ANNEXURE R2(D) TRUE PHOTOSTAT COPY OF PROTEST COMPLAINT M.P.NO.327/2014 BEFORE JFCM.ALUVA._ - _ANNEXURE R2(E) COPY OF THE EMAIL DATED 16/3/2013 ALONG WITH PETITION IN CRL.M.C. SENT TO ATTACHMENT OF EMAIL._ - _ANNEXURE R2(F) DEPOSITION BEFORE JFCM III COURT N.PARUR IN CRL.M.P.NO. 2286/2015._ - _ANNEXURE R2(G) TRUE PHOTOSTAT COPY OF REFER REPORT IN CRIME NO.712/13_ - _ANNEXURE R2(H) TRUE PHOTOSTAT COPY OF CRIMINAL COMPLAINTS IN S.T.4989/2013._ - _ANNEXURE R2(I) TRUE PHOTOSTAT COPY OF CRIMINAL_ Crl.M.C.No.6789/18 10 _COMPALINTS IN S.T. 4990/2013. ANNEXURE R2(J) TRUE PHOTOSTAT COPY OF THE FINAL ORDER. ANNEXURE R2(K) TRUE PHOTOSTAT COPY OF FINAL ORDER._