Rajendran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 10105 OF 2023 ``` ``` CRIME NO.365/2013 OF KANNAPURAM POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT CC 1623/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR ``` ## **`PETITIONER(S)/1ST ACCUSED:`** ``` RAJENDRAN AGED 58 YEARS, OTHAYOTH HOUSE, KARIKKANKULAM, PAPPINISSERY WEST P.O., KANNUR, PIN - 670561 ``` ``` BY ADVS. BEJOY JOSEPH P.J. M.RAMESH CHANDER (SR.) BALU TOM GOVIND G. NAIR BONNY BENNY ``` ## **`RESPONDENT(S)/COMPLAINANT & STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV. ``` ``` SRI. M.P. PRASANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.No.10105 of 2023 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C. No.10105 of 2023 ---------------------------------------------Dated this the 13[th ] day of December, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioner is one of the accused in CC No.1623/2013 on the file of Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.365/2013 of Kannapuram Police Station, Kannur. The above case is charge sheeted against the petitioner and others alleging offences punishable under Sections 420 and 406 r/w 34 of IPC. ``` Crl.M.C.No.10105 of 2023 ``` 3 3. It is submitted that the co-accused were already acquitted as per Annexure-A1 judgment. Hence, the continuation of the proceedings against the petitioner alone is an abuse of process of court. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 5. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v.** ``` Crl.M.C.No.10105 of 2023 ``` 4 **State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgment of acquittal of the coaccused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of Annexure-A1 judgment by which the co-accused were acquitted: “8. PWs 1 and 2 would say that accused ``` Crl.M.C.No.10105 of 2023 ``` 5 had requested for money and when they were unable to raise amount, they had given gold ornaments on a promise that it would be returned in 3 months. PWs 1 and 2 would say that the gold ornaments were pledged in Kannapuram Co-operative Bank. According to learned counsel for accused, PWs 1 and 2 were aware of the fact that the gold ornaments were received from the accused for raising fund. If that be so, even if it is assumed that accused pledged the gold for raising fund, the inability to return the gold by releasing the same from the bank cannot be said to be an act with dishonest intention, it is argued. 9. No doubt, PWs 1 and 2 would say that accused had an intention to cheat them by not returning the gold. But at the same time, PW2 would say that accused never said that they would not return the gold. Therefore, as rightly pointed out by learned counsel for accused, even if the case of prosecution is believed, the intention on the part of accused to deceive PWs 1 and 2 by not returning the gold ornaments can not be readily inferred. Prosecution has no case that the gold ornaments has been sold or misappropriated by the accused. The investigating officer has not conducted any ``` Crl.M.C.No.10105 of 2023 ``` 6 investigation to find out the gold despite the fact that PWs 1 and 2 had knowledge that the gold had been pledged by accused in Kannapuram Co- Operative Bank. Realising the said omission, learned APP filed an application for further investigation when the case was reserved for judgment. As that application was not filed by the investigating agency and as it was highly belated, it was dismissed. Thus, there is no cogent evidence to show that accused misappropriated the gold ornaments. Even if it is believed that accused had borrowed gold ornaments from PWs 1 and 2 and that it has been pledged, it was known to these witnesses that the gold is taken for pledging. Therefore, even if the gold is recovered from the bank by conducting a further investigation, it will not improve the case. Unless there is clear evidence to show the intention of accused, it is not proper to assume that accused had an intention to cheat, that too from the inception. The statement of PW2 that accused never said that the gold will not be returned is a clear indication that PWs 1 and 2 were not convinced about the dishonest intention of accused even at the time of launching the prosecution. Thus, there is sufficient force in the submission of learned ``` Crl.M.C.No.10105 of 2023 ``` 7 counsel for accused that the prosecution was initiated either on wrong notion or on a mistaken impression. As the prosecution failed to bring home the dishonest intention of accused to cheat, I conclude that accused cannot be penalized for the mere inability on their part to return the ornaments borrowed from PWs 1 and 2. As a corollary, A2 & 3 are entitled for an acquittal. Points are answered against prosecution.” 6. From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in CC No.1623/2013 on the file of 8 ``` Crl.M.C.No.10105 of 2023 ``` Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.365/2013 of Kannapuram Police Station, Kannur are quashed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` Crl.M.C.No.10105 of 2023 ``` 9 ## **`APPENDIX OF CRL.MC 10105/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1PHOTOSTAT COPY OF THE JUDGMENT OF THEJUDICIALFIRSTCLASS MAGISTRATE-I, KANNUR IN CC 1623/2013 DATED 27.07.2017 ANNEXURE A2PHOTOSTAT COPY OF THE RELEVANT PAGE OF THE PASSPORT ISSUED TO THE PETITIONER ``` ``` RESPONDENTS EXHIBITS:NIL //TRUE COPY//PA TO JUDGE ```