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. 10120 OF 2023 ``` ``` CRIME NO.328/2013 OF KANNAPURAM POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT CC 450/2014 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.) BONNY BENNY GOVIND G. NAIR BALU TOM ``` ## **`RESPONDENT(S)/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`BY ADV.`** ``` SRI HRITHWIK CS, 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.10120 of 2023 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C. No.10120 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.450/2014 on the file of Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.328/2013 of Kannapuram Police Station, Kannur. The above case is charge sheeted against the petitioner and other accused alleging offences punishable under Sections 406 and 420 of IPC. ``` Crl.M.C.No.10120 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.10120 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: “20. It has been brought out in evidence ``` Crl.M.C.No.10120 of 2023 ``` 5 that the relationship between the parties got strained at a later stage. It is the case of PWs1 to 3 that the husband of PW2 committed suicide on account of a false allegation made by the 2nd accused that he tried to commit rape on her. Thus, the relationship between the parties became so hostile after the death of the husband of PW2 named Padmanabhan. In other words, until their relationship becomes strained, admittedly, there was several transactions between the parties. PW1 would say that on 0505-2013, the date on which the 2nd accused created a scene that ultimately led to the suicide of her father, the 1[st] accused had told that he would pay back the entire amount. Thus, it is evident that until the said unfortunate incident had happened, the accused had not denied the transactions or the amount allegedly owed to PWs 1 to 3. If that be so, there is absolutely no evidence or even circumstance which would suggest an intention on the part of accused to cheat, from the inception. No doubt, a subsequent conduct can also be a circumstance to infer an intention of accused to cheat. But, such subsequent conduct is not the sole criteria to judge that the accused had an intention to cheat. On going by the evidence, even if it is ``` Crl.M.C.No.10120 of 2023 ``` 6 assumed that accused and PWs1 to 3 had transactions, everything turned upside down due to the unfortunate death of the husband of PW2. Therefore, even assuming that the accused did not keep their words, we cannot jump into a conclusion that the accused had an intention to cheat, that too from the inception, to foist criminal liability on her. As such, an inevitable ingredients of the offence of cheating is missing in the facts of the case. At any rate, the accused is entitled for the benefit of doubt. Thus, I conclude that prosecution failed to bring home the offence under section 420 of IPC. 21. Another allegation against accused is that she misappropriated the fund entrusted by PWs1 to 3 and that they have converted it as their own. As already discussed, the evidence of PWs1 to 3, coupled with other corroborative evidence, suggests and proves that accused had received some amount from PWs1 to 3. The proximity of time between such transactions and the time of purchase of properties in the name of 2nd accused shows that accused might have invested the fund they collected from PWs1 to 3 in the real estate business. The evidence also shows that accused sold away the properties. But, as already discussed, there is no clarity as to ``` Crl.M.C.No.10120 of 2023 ``` 7 the actual amount that has been parted with or entrusted with accused. There is absolutely no scrap of papers produced to show that any particular amount has been entrusted with accused. As already discussed, there is a strong enmity between the parties on account of the death of said Padmanabhan. In the absence of any documentary evidence to prove the transactions and in view of the previous enmity between the parties, a serious doubt lingers in the mind of the court regarding the trustworthiness of PWs1 to 3. In these circumstances, it may not be proper to enter a finding upon interested testimonies of PWs1 to 3. At any rate, it is not just to presume that the amount has not been returned. Since there is no documents regarding the payment of money by PWs 1 to 3, it may not be proper to infer that the amount so received has not been returned for want of any proof in black and white. Thus, I conclude that entrustment of property or its misappropriation are not proved with cogent and reliable evidence to enter a conviction under section 406 of IPC. Therefore, she is entitled for an acquittal. Points are answered against the prosecution.” 8 ``` Crl.M.C.No.10120 of 2023 ``` 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.450/2014 on the file of Judicial First Class Magistrate Court – I, Kannur, arising from Crime No.328/2013 of Kannapuram Police Station, Kannur, are quashed. Sd/- nvj ## **P.V.KUNHIKRISHNAN JUDGE** ``` Crl.M.C.No.10120 of 2023 ``` 9 ## **`APPENDIX OF CRL.MC 10120/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1PHOTOSTAT COPY OF THE JUDGMENT OF THEJUDICIALFIRSTCLASS MAGISTRATE-I, KANNUR IN CC 450/2014 DATED 29.01.2019 ANNEXURE A4PHOTOSTAT COPY OF THE RELEVANT PAGE OF THE PASSPORT ISSUED TO THE PETITIONER ``` ``` RESPONDENTS EXHIBITS:NIL ``` ``` //TRUE COPY//PA TO JUDGE ```