Raju and Rino v. State of Kerala and Shameer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** ## **Crl.MC.No. 5160 of 2016** ## **-----------------------** **CC 1142/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA CRIME NO. 469/2012 OF BINANIPURAM POLICE STATION , ERNAKULAM** **-----------** ## **PETITIONER(S)/ACCUSED 1 AND 2.:** **------------------------------** ## **1. RAJU,** **AGED 58 YEARS, S/O ANTONY, SINAYI HOUSE, MILLUPADY BHAGAM, MUPPATHADAM KARA, KADUNGALLOOR VILLAGE.** ## **2. RINO,** - **AGED 22 YEARS, S/O. RAJU, SINAYI HOUSE, MILLUPADY BHAGAM, MUPPATHADAM KARA, KADUNGALLOR VILLAGE.** ## **BY ADV. SRI.V.N.SUNIL KUMAR** ## **RESPONDENT(S)/STATE AND DE-FACTO COMPLAINANT.:** **----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682031.** ## **2. SHAMEER,** - **AGED 36 YEARS, S/O. AIMU, KATTIPARAMBIL HOUSE, NEAR MADIRATHUPADAM, MUPPATHADAM KARA, KADUNGALLOOR VILLAGE, NOW RESIDING AT SURESH'S HOUSE, KALINJATHIL, EAST OF MILLUPADY, MUPPADATHAM KARA, KADUNGALLOR VILLAGE-PIN-683110.** **R1 BY PUBLIC PROSECUTOR SRI.T.R.RENJITH R2 BY ADV. SRI.SHYLESH KRISHNAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 5160 of 2016 -----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES -----------------------** |**ANNEXURE AI**|<br>**TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN**| |---|---| ||**BY THE DE-FACTO COMPLAINANT IN C.C. NO. 1142/2015**| ||**ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE.**| ||**COURT-II, ALUVA DATED 27.06.2012.**| |**ANNEXURE A2**|<br>**TRUE COPY OF FIR NO. 469/2012 DATED 27.06.2012 IN**| ||**C.C. NO. 1142/2015 ON THE FILE OF JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT-II, ALUVA.**| |**ANNEXURE A3**|<br>**CERTIFIED COPY OF THE CHARGE SHEET IN C.C. NO.**| ||**1142/2015 DATED 9.09.2012 ON THE FILE OF JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT-II, ALUVA.**| |**ANNEXURE A4**|<br>**TRUE COPY OF ADDITIONAL STATEMENT OF 2ND RESPONDENT**| ||**BY THE POLICE IN C.C. NO. 1142/2015 DATED**| ||**27.06.2012 ON THE FILE OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT-II, ALUVA.**| |**ANNEXURE A5**|<br>**TRUE COPY OF THE STATEMENT OF CW2 RECORDED BY THE**| ||**POLICE IN C.C NO. 1142/2015 DATED 27.06.2012 ON THE**| ||**FILED OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,**| ||**ALUVA.**| |**ANNEXURE A6**|<br>**TRUE COPY OF THE SEARCH LIST PRODUCED BY THE POLICE**| ||**IN C.C. NO. 1142/2015 DATED 27.06.2012 ON THE FILE**| ||**OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA.**| |**RESPONDENT(S)'**|**ANNEXURES**| |**-----------------------**|| ||**NIL.**| ||**/ TRUE COPY /**| ||**P.S. TO JUDGE**| **PJ** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No. 5160 of 2016** -----------------------------------------Dated this the 18[th] day of October, 2016 ## **O R D E R ~~~~~~~~** - 1.The petitioners are the accused Nos.1 and 2 in C.C.No.1142 of 2015 on the file of the Judicial Magistrate of First Class-II, Aluva. They stand indicted for offences punishable under Sections 406, 420, 323 and 506(i) read with Section 34 of the IPC and under Section 17 of the Money Lenders Act (Kerala). - 2.The prosecution allegation is that the 1[st] petitioner advanced a sum of Rs.13 lakhs to the 2[nd] respondent on the strength of securities. Later, in order to clear the debts of the 2[nd] respondent, 10 cents of property belonged to the father of the 2[nd] respondent was transferred to the name of the wife of the 1[st] petitioner for ## **Crl.M.C. No.5160 of 2016** **-2-** a sum of Rs.26 lakhs. The understanding between the parties was that the amount in excess obtained at the time of sale would be given to the 2[nd] respondent. On the failure of the petitioners to comply with the above, complaint was lodged based on which the aforesaid crime was registered. - 3.Heard the learned counsel appearing for the petitioners, the 2[nd] respondent as well as the learned Public Prosecutor. - 4.The learned counsel appearing for the 2[nd] respondent submits that the de facto complainant is present before the court and referring to the compounding petition preferred before this Court, it is submitted that the disputes have been amicably resolved. - 5.The learned counsel appearing for the petitioners submits that in view of the settlement arrived at between the parties, this Court will be justified in quashing the ## **Crl.M.C. No.5160 of 2016** **-3-** proceedings. - 6.The learned Public Prosecutor after getting instructions has expressed his reservations in the matter of quashing the proceedings on the basis of settlement. It is submitted that the invocation of powers under Section 482 of the Code in a case of this nature is not warranted. However, it is submitted that no other cases are reported against the petitioners. - 7.In **Gian Singh v. State of Punjab and Another** [2012 (10)SCC 303], the Apex Court has crystalised the position in respect of the powers vested in the High Court under S.482 of the Criminal Procedure Code, to quash criminal proceedings. It was held that the power vested in the High Court under Section 482 of the Criminal Procedure Code, is not limited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three - Judge Bench in the above case, clearly **Crl.M.C. No.5160 of 2016** **-4-** expounded, that quashing of criminal proceedings under S.482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing criminal proceedings, was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. In all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in **Narinder Singh v. State of Punjab** [2014 (6) SCC 466] and recently in **Rajesh Kamath J. and Others v. Mohana** **Crl.M.C. No.5160 of 2016** **-5-** **Kurup and Others** [AIR 2016 SC 2452]. 8.I have considered the rival submissions and I have gone through the materials on record. The offence committed by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. More over, when the respondent No.2 has settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the 2[nd] respondent to great oppression and prejudice. - 9.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. **Crl.M.C. No.5160 of 2016** **-6-** In the result, this petition will stand allowed. Annexure-A3 final report and all proceedings pursuant thereto against the petitioners now pending as C.C. No. 1142 of 2015 on the file of the Judicial Magistrate of First Class-II, Aluva are quashed. **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/18/10/16