Rajan v. Ramakrishnan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933 Crl.MC.No. 3505 of 2006 ( ) --------------------------CC.303/2005 of J.M.F.C.- I, OTTAPPALAM PETITIONER(S)/ACCUSED NO.1: -------------------------- RAJAN, AGED 43 YEARS, S/O. PARUKKUTTY AMMA, PRAMEELA NIVAS VENGASSERY AMSOM, DESOM, OTTAPALAM TALUK. BY ADVS.SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT(S)/COMPLAINANT AND STATE: ------------------------------------- 1. RAMAKRISHNAN, AGED 40 YEARS, S/O. KRISHNANKUTTY, PUNNASSERI HOUSE - KADAMBAZHIPPURAM AMSOM DESOM, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2-BY PUBLIC PROSECUTOR SMT. MAYA R1-BY SRI.SANTHEEP ANKARATH THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 14-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3505 of 2006 PETITIONER'S ANNEXURES: ANNEXURE-A COPY OF THE PRIVATE COMPLAINT PREFERRED BY R1 DATED 9.7.2004. ANNEXURE-B COPY OF THE C.M.P.NO.11168/03 PREFERRED BY R1 DATED 12.11.2003. ANNEXURE-C COPY OF THE CHARGESHEET IN C.C.NO.98/04 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM DATED 30.4.2004. ANNEXURE-D COPY OF THE STATEMENT OF R1 DATED 12.3.2004 RECORDED BY THE A.S.I OF POLICE, OTTAPALAM. ANNEXURE-E COPY OF THE STATEMENT DATED 30.4.2004 TENDERED TO THE A.S.I OF POLICE, OTTAPALAM BY MUHAMMED KUTTY. ANNEXURE-F COPY OF THE STATEMENT DATED 29.4.2004 OF RAMACHANDRAN. ANNEXURE-G COPY OF THE LETTER ISSUED FROM THE MILITARY UNIT WITH REFERENCE FROM THE PETITIONER. ANNEXURE-H COPY OF THE REPORT DATED 30.4.2004 SUBMITTED BY THE A.S.I OF POLICE BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM. /TRUE COPY/ P.S. TO JUDGE CL ## **K. HARILAL, J.** .................................................. CRL.M.C.NO.3505 OF 2006 .................................................... Dated this the 14[th] day of February, 2012. ## **O R D E R** This Crl.M.C. is filed to quash Annexure-A complaint and all proceedings pursuant thereto in C.C.No.303/2005 of the Judicial First Class Magistrate Court, Ottapalam as against the petitioner herein. Petitioner is the first accused in the aforesaid C.C.No.303/2005 wherein he along with two others stand accused of having committed the offence under Section 420 read with Section 34 I.P.C. C.C.No.303/2005 was initiated on the basis of a private complaint dated 9.7.2004 preferred by the first respondent herein. 2. The allegations in the private complaint are that the second accused had allegedly made the first respondent herein believe that he will secure employment for his sister's son in the Army through the son-in-law of the first accused namely the petitioner herein and had allegedly made him to pay a sum of `1,50,000/- in February, 2003 to the petitioner herein at the house of the second accused in lieu of the expenses for securing employment. Subsequently, even though the second accused had allegedly taken the sister's CRL.M.C.NO.3505 OF 2006 : 2 : son of the first respondent herein to Punai and from there along with the petitioner herein and the third accused allegedly taken him to a place for an interview, the employment could not be secured. It is further alleged that subsequent enquries revealed that the accused were not at all competent to secure an employment as promised, in the Army. It is also alleged that on demand, an amount of `82,000/- was given back by the second accused, the remaining amount has not been given back and thereby committed the offence punishable under Section 420 of the I.P.C. 3. For the very same allegations, the first respondent herein had preferred C.M.P.No.11168/2003 before the Court of Judicial First Class Magistrate, Ottapalam, which was referred under Section 156(3) of Cr.P.C and pursuant to which Crime No.456/2003 of Ottapalam Police Station was registered against the petitioner herein and two others. Thereafter it was taken on the file of the Judicial First Class Magistrate Court, Ottapalam as C.C.No.98/2004. 4. The learned counsel for the petitioner submits that CRL.M.C.NO.3505 OF 2006 : 3 : Annexures A to G are sufficient to improbablise the allegations in Annexure-A complaint. The counsel argued that Annexures D,E,F and G would categorically make it clear that AnnexureA and all proceedings pursuant thereto as against the petitioner herein are manifestly actuated by malafides and is an abuse of the process of the court which is liable to be quashed. Annexure-G would clearly and categorically establish the fact that the petitioner herein was serving in the Army at the time of the alleged transaction taken place and hence the prosecution case that the alleged transaction took place around the period from February, 2003 to March 2003 cannot be accepted in view of Annexure-G letter issued from the Military Unit. 5. Per contra, the learned counsel for the respondent submits that the inherent power has to be exercised sparingly and cannot be used to stifle legitimate prosecution, but the instant case, does not come under such category prescribed by Supreme Court by various decisions. According to him, exercise of power under Section 482 is not rule but an exception only. If the petitioner has any such grievance CRL.M.C.NO.3505 OF 2006 : 4 : highlighted in the petition, he could have resorted remedies under the Code of Civil Procedure and the Crl.M.C is liable to be dismissed. 6. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the learned counsel for the respondent. 7. The settled law by plithoric judicial precedence from **R.P. Kapoor v. State of Punjab** (AIR 1960 SC 866) to **Som Mittal v. Government of Karnataka** (AIR 2008 SC 1528) is that the inherent power has to be exercised sparingly with circumspection and in the rarest of rare cases. In **Som Mittal v. Government of Karnataka** (2008(3) SCC 753), the Supreme Court held that exercise of power under Section 482 Cr.P.C is not rule but an exception only. In **R.P. Kapoor v. State of Punjab** (AIR 1960 SC 886), the Supreme Court held that “inherent power of High Court cannot be invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C. In **State of Haryana and Others v. Bhajan Lal** (AIR 1992 SC 604) the Supreme Court CRL.M.C.NO.3505 OF 2006 : 5 : judicially recognized the grounds for exercising the power under Section 482 Cr.P.C and the said guidelines are being consistently followed in all subsequent decisions. In **State of M.P. v. Awadh Kishore Gupta and Others** (2003 AIR SCW 6501), the Supreme Court held that the court should not act on annexures to the petition under Section 482 of the Code which cannot be termed as evidence without being tested and proved. 8. In view of the above decision, I have examined the case advanced by the petitioner and arguments made thereupon. The first contention raised by the petitioner is that Annexures- D,E and F would be sufficient to probablise the falsity of the allegations in Annexure-A private complaint. Admittedly Annexures-D,E and F are statements recorded under Section 161 Cr.P.C in another case. It is well settled that the statement of witness recorded by investigating officer under Section 161 can be used in trial only for contradiction or omissions when such witness is examined in court. Statement under Section 161 Cr.P.C is not a substantive piece of evidence on which reliance can be made to quash CRL.M.C.NO.3505 OF 2006 : 6 : proceedings in another case. More over, according to **State of M.P. v. Awadh Kishore Gupta and Others** (2003 AIR SCW 6501), the court should not act on Annexures to the petition under Section 482 of the Code, which cannot be formed as evidence without being tested and proved. This proposition was followed in **Sathy M. Pillai v. Sarma** (2005 (2) KLT 954). Therefore in the light of the very limited purpose of the statement under Section and the aforesaid decision, I am not inclined to accept the first contention and I reject the same. 9. The second contention is that Annexure-G letter issued from Military Unit would be sufficient to prove that at the time of occurrence he has not availed leave and he was employed in Military. Annexure-G is a letter to be tested and proved in trial only and no reliance can be placed on such documents to exercise jurisdiction under Section 482. Moreover, 'Alibi' is a defence to be proved in trial only and the burden is on the accused who takes the defence. Therefore, I am not inclined accept the second contention also. The learned counsel cited **Yin Cheng Hsiung v. M/s** CRL.M.C.NO.3505 OF 2006 : 7 : **Essem Chemical Industries** (2011 (1) KLD 493); wherein the Supreme Court directed the High Court to examine the entries in appellant's passport to examine the question whether the appellant in that case was in India, to find out answer to the question whether the appellant in that case was responsible for day to day affairs of the company in India. The relevancy and evidenciary value of Section 161 statement is not on a par with the passport issued by the competent authority under law in discharge of their official duty. Thus facts of the instant case are different from (2011 (1) KLD 493) and the decision cited is not applicable to this case. At all points, there is no circumstance warranting interference invoking inherent power of this Court under Section 482 of the Cr.P.C. The points raised are matters to be proved in trial only. In the result, this Crl.M.C will stand dismissed. ## **K. HARILAL, JUDGE.** **cl**