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. 10108 OF 2023 ``` ``` CRIME NO.421/2013 OF KANNAPURAM POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT CC 1634/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR ``` ## **`PETITIONER(S)/2ND ACCUSED:`** ``` RAJENDRAN AGED 58 YEARS, MADATHIL HOUSE, KARIKKANKULAM, PAPPINISSERY 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. HRITHWICK C.S., 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.10108 of 2023 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C. No.10108 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.1634/2013 on the file of Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.421/2013 of Kannapuram Police Station, Kannur. The above case is charge sheeted against the petitioner and other accused alleging offences punishable under Sections 420 and 406 of IPC. ``` Crl.M.C.No.10108 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** ``` Crl.M.C.No.10108 of 2023 ``` 4 **of Police (2006 (1) KLT 552), Abbas T.K. v. 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 ``` Crl.M.C.No.10108 of 2023 ``` 5 ## were acquitted: “10. On going through the complaint that was forwarded to the police, it is not discernible for what business CW1 had agreed with accused. It is alleged in the complaint that accused made money using the gold for doing money lending business. Prosecution has no case that the accused has license to do money lending business. If that be so, it has to be inferred that CW1 parted with the gold ornaments and agreed to do illegal money lending business with the accused. Learned counsel for accused argued that CW1 purposefully kept away from the court as he apprehended that he would be exposed. 11. As rightly pointed out by learned counsel for accused, CW1 not revealed even in exhibit P1 complaint as to what was the business which the accused promised to carry on. Thus, there is some force in the argument advanced by learned counsel for accused that CW1 is reluctant to depose before the court. Be that as it may. On going through the evidence on record, even though there is some evidence to show that CW1 had parted with gold to the 1[st] accused and that it was returned after pledging the same in the bank, there is no satisfactory evidence to ``` Crl.M.C.No.10108 of 2023 ``` 6 show that accused cheated CW1 much less she had an intention to cheat, from the inception. There is also no evidence regarding any misappropriation of property by this accused. Therefore, I conclude that prosecution failed to bring home the essential ingredients of the offences alleged against 1st accused. Therefore, she is entitled for an acquittal. Points are answered against the 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.1634/2013 on the file of 7 ``` Crl.M.C.No.10108 of 2023 ``` Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.421/2013 of Kannapuram Police Station, Kannur are quashed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` Crl.M.C.No.10108 of 2023 ``` 8 ## **`APPENDIX OF CRL.MC 10108/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1PHOTOSTAT COPY OF THE JUDGMENT OF THEJUDICIALFIRSTCLASS MAGISTRATE-I, KANNUR IN CC 1634/2013 DATED 03.08.2018 ANNEXURE A4PHOTOSTAT COPY OF THE RELEVANT PAGE OF THE PASSPORT ISSUED TO THE PETITIONER ``` ``` RESPONDENTS EXHIBITS:NIL ``` ``` //TRUE COPY//PA TO JUDGE ```