Rajeesh and others v. State of Kerala and Rathnakaran

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945`** ## **`CRL.MC NO. 706 OF 2020`** ## **`CC 112/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA`** ## **`PETITIONERS/ACCUSED 1 TO 4:`** ``` 1RAJEESH AGED36YEARS S/O.MANIKYAN,PANDARAPARAMBILHOUSE,CHELURDESOM, CHELURP.O.,MUKUNDAPURAMTALUK,THRISSURDISTRICT 2BHARATHAN, AGED58YEARS S/O.MANIKYAN,ETTUMURIPARAMBILHOUSE,CHETTIPARAMBU DESOM,IRINJALAKUDAP.O.,MUKUNDAPURAMTALUK, THRISSURDISTRICT 3MANOHARAN, AGED55YEARS S/O.VENKITTARAMAN,THATTARUPARAMBILHOUSE,WEST KOMBARA,IRINJALAKUDAP.O.,MUKUNDAPURAMTALUK, THRISSURDISTRICT 4SARATHCHANDRAN, AGED42YEARS S/O.AYYAPPANCHETTIYAR,KAYYALAPARAMBILHOUSE, CHELURDESOM,CHELURP.O.,MUKUNDAPURAMTALUK, THRISSURDISTRICT BYADVN.L.BITTO ``` ## **`RESPONDENTS/STATE OF KERALA AND THE COMPLAINANT:`** ``` 1THESTATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR,HIGHCOURTOF - KERALAATERNAKULAM682031 2RATHNAKARAN, AGED62YEARS S/O.VISHWANATHAN,KARAYILHOUSE,CHETTIPARAMBU DESOM,IRINJALAKUDAP.O.,MUKUNDAPURAMTALUK, ``` Crl.M.C No.706 of 2020 2 ``` - THRISSURDISTRICT680713 ``` ``` BYADVSRI.C.DINESH ``` ``` SRI.MCASHI,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON03.08.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` Crl.M.C No.706 of 2020 3 ## **ORDER** The petitioners herein are the accused Nos.1 to 4, in CC No.112/2018, on the file of the Judicial First Class Magistrate Court, Irinjalakuda. It is brought to the notice of this Court that the 1[st] petitioner is now no more. They are facing prosecution for having committed offences punishable under Sections 120B, 420, 468 r/w Section 34 of the IPC. The aforesaid case has been taken cognizance by the learned Magistrate on the basis of a complaint lodged by the party respondent herein. 2. The crux of the allegation in the complaint is as under: The party respondent is a devotee of Sri Mariamman Temple, Cheloor. He states that he was the former Secretary of the Temple Protection Samithi as well. The temple has been registered under Section 12 of the Travancore Cochin Literary, Scientific and Charitable Societies Act. The accused are the office bearers of the present committee. As per the bylaws, the tenure of the office members is two years. It is stated that one Vishwanathan Chettiar was the President of the Samithi till 26.7.1989. Till 2014, the accounts of the temple were not submitted before the Registrar. In the year 2015, the 1[st] accused, who is now no more, became the President, the 2[nd] accused became the Secretary, and the accused Nos.3 and 4 became members of the General Body. For Crl.M.C No.706 of 2020 4 renewal of the registration, the committee members approached the Registrar. However, the Registrar refused to re-register the society on the premise that the accounts were not available. In the year 2015, the accused are alleged to have prepared certain false records and produced the same before the Registrar to secure registration. According to the informant, the accused had collected various sums of money from various persons for the purpose of running the temple. The amounts so collected have not been accounted for. It is also stated that the accounts were prepared without any basis, and names of certain persons who were not even members have been included in the accounts which were submitted before the Registrar. It is stated that the party respondent had lodged a complaint before the Registrar, however, owing to the influence of the accused, no action was taken. It is on these assertions that Annexure-I complaint was lodged on 22.12.2017. The learned Magistrate recorded the statement of the party respondent and thereafter took cognizance. 3. The learned counsel appearing for the petitioners submitted that offences alleged against the petitioners are not made out. He would contend that the party respondent was the Secretary for the period from 1987 to 1991, and during the said period, the accounts were not prepared, and the same was not submitted before the Registrar. The learned counsel urged that though it is stated that amounts were collected from various persons, none of those persons have been arrayed Crl.M.C No.706 of 2020 5 as witnesses. It is also submitted that the society is registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act, and it is for the Registrar to initiate action if re-registration of the Society was obtained by submitting concocted records. He would further contend that it is based on the solitary statement of the informant that cognizance was taken by the learned Magistrate. 4. The learned counsel for the respondent has opposed the submission. It is submitted that the learned Magistrate has taken note of the statement given by the complainant and has decided to take cognizance. It is submitted that no interference is warranted. 5. I have heard the learned Public Prosecutor as well and have considered the submissions advanced. 6 It is based on the complaint laid by the party respondent before the learned Magistrate that cognizance was taken for the offences punishable under Section 120B, 420, 468 r/w Section 34 of the IPC. The essence of the allegation is that during the period from 2001 to 2019, during which period the complainant was a member of the managing committee, the general body was not convened, which led to the Society losing its registration. It is further alleged that after the petitioners became members of the Committee, the registration fee for the past 28 years was remitted to get the registration renewed. It is alleged that the accused concocted certain documents showing the remittances and Crl.M.C No.706 of 2020 6 expenses for the previous period for the purpose of obtaining re-registration. There appears to be considerable merit in the contention of Sri. Bitto that the object of the Committee was only to get the registration renewed. From the facts discernible from the records, it appears that all that the committee members had done was regularise the transactions for the previous years and make the records in order. After having failed to perform the duties cast upon the complainant as well as the former committee members, it is futile for him to complain that for the purpose of registration, the petitioners have fabricated records. As a matter of fact, if registration was obtained from the Registrar by fabricating records, this aspect of the matter has to be brought to the notice of the Registrar, and appropriate orders are to be obtained. Section 19 of the Act XII of 1955 confers power to call for accounts and inspection of books, etc. It states that the State Government may at any time call upon the governing body of any society to submit periodically accounts of income and expenditure and of the assets and liabilities of the society. The Registrar or any other officer authorized by the State Government is required to periodically examine the accounts and other books of the society and submit to the Government a report on the result of such inspection. The Inspecting Officer is also empowered to enter the premises of the society and governing body, and the servants of the society shall furnish him with all information he may call for and shall also Crl.M.C No.706 of 2020 7 render him all the assistance necessary to enable him to conduct the examination and make the report. It is the duty of the governing body and of all persons who are or have been servants of the society to produce before the officer so deputed, all books and documents in their custody or power relating to the society and to answer any question relating to the affairs of the society. The State Government is also empowered for the efficient and better management of the society, to review the report submitted under sub-section (1) and pass such orders as they deem fit other than those referred to in clauses (a) to (c) of sub-section (1) of section 25. In that view of the matter, the complainant ought to have approached the State Government or the Registrar for reviewing the accounts or for inspection of books and if any wrongdoing is found by the competent authority, he could have approached the police and got the crime registered. At any rate, the police are not the authority to enquire into whether the steps taken by the Registrar to grant re-registration are in order. Furthermore, none of the persons from whom the money was allegedly obtained was examined before the Court to substantiate the allegation. None of these aspects were considered by the learned magistrate prior to taking cognizance. 7. In **Lalankumar Singh and Ors. v. State of Maharashtra** [AIR 2022 SC 5151], it has been held by the Apex court that the order of issuance of process is not an empty formality. The Magistrate is required Crl.M.C No.706 of 2020 8 to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. A wide discretion has been given as to grant or refusal of process, and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. 8. Having considered the facts of the instant case in all its perspectives, I am of the view that the learned Magistrate was not justified in taking cognizance of the complaint lodged by the 2nd respondent and in issuing process. The complaint is therefore liable to be quashed. This petition will stand allowed. All further proceedings pursuant to Annexure-1 complaint and C.C.No.112/2018 on the file of the Judicial Magistrate of the First Class, Irinjalakkuda are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.706 of 2020 9 ## **`APPENDIX OF CRL.MC 706/2020`** ``` PETITIONERS’ANNEXURES: ``` ``` ANNEXURE-I ``` ``` ATRUECOPYOFTHECOMPLAINTINCC.112OF 2018OFTHEJFCM,IRINJALAKUDADATED 22/12/2017 ``` ``` ANNEXURE-II ``` ``` ATRUECOPYOFTHESWORNSTATEMENTRECORDED IN202ENQUIRYBYTHEMAGISTRATEISDATED 26/12/2017 ``` ``` ANNEXURE-III ``` ``` ATRUECOPYOFTHELETTERISSUEDFROMTHE DIST.REGISTRARTOTHECOMPLAINANTDATED 01/02/2018 ``` ``` ANNEXURE-IV ``` ``` ATRUECOPYOFTHEPLAINTINOS.413OF2003 OFTHESUBCOURTIRINJALAKUDADATED 02/12/2003 ``` ``` ANNEXURE-V ``` ``` ATRUECOPYOFTHESUMMONSISSUEDBYTHE JFCM,IRINIJALAKUDADATED23/03/2018 ``` ``` Annexure-VIATRUECOPYOFTHEORDERPASSEDBYTHEJFCM DATED10/1/2018 ```