Raju Kurian v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **Crl.MC.No.6112 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 601/2014 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM** ## **PETITIONER/ACCUSED NO.3** **RAJU KURIAN AGED 47 YEARS S/O.KURIAN, MENACHERRIL (H), NJARAKAL P.O., VYPIN, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.N.SUKUMARAN SRI.AKHIL S.VISHNU** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** - **2 SUB INSPECTOR OF POLICE KOTTAYAM WEST POLICE STATION.** - **3 P.M.SADANANDAN AGED 56 YEARS S/O.PADMANABHAN, GURUKRIPA (H), KALLARA SOUTH, KOTTAYAM DISTRICT, BRANCH BANAGER, INDIAN OVERSEAS BANK, T.B.ROAD BRANCH, KOTTAYAM.** - **R1, R3 BY ADV. SRI.K.N.SIVASANKARAN R1 BY ADV. SRI.SUNIL SHANKER** ## **OTHER PRESENT:** ## **SRI. K.B UDAYAKUMAR(P.P)** ## **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **24-11-2020, THE COURT ON 27-11-2020 PASSED THE FOLLOWING:** Crl.M.C.6112 of 2016 2 ## ORDER ## Dated : 27[th] November, 2020 ## M.R.Anitha J. 1. This case has been filed under Sec.482 Cr.P.C. to quash the proceedings against the petitioner/3rd accused in C.C.601/2014 on the file of the Judicial First Class Magistrate Court-III, Kottayam. 2. The case against the petitioner and two others were chargesheeted by the Sub Inspector of police, Kottayam West police station under Secs 403, 406, 420, 468 and 120B r/w 34 IPC. 3. Prosecution case is that 1[st] accused availed a loan of Rs.12.5 Lakhs from the Indian Overseas Bank (IOB) Kottayam, T.B.Road branch for purchasing an Innova car. The 3[rd] respondent/de facto complainant who is the Manager of the bank issued two demand drafts for Rs.9 Lakhs and 2.5 Lakhs each on 25.1.2013 and handed over a finance note and covering letter and a filled up Form-20, in order to hand over the same to the dealer of the vehicle for endorsing the hypothecation details in the R.C. Book. But in pursuance of the conspiracy hatched among accused Nos. 1 to 3, the Innova car purchased by the 1[st] accused was registered temporarily on 15.4.2013. Thereafter a permanent registration was obtained on Crl.M.C.6112 of 2016 3 8.5.2013 without noting the hypothecation details in the R.C book. Thereafter accused No.1 fraudulently transferred the vehicle to CW11 and thereby obtained unlawful enrichment and caused wrongful loss to the bank. It is further alleged that accused No.1 further failed to remit the installments. Then the de facto complainant searched for the vehicle and found subsequently that the vehicle was clandestinely sold out to CW11. There upon a complaint was filed by the 3[rd] respondent/de facto complainant before the Sub Inspector against accused No.1 and Manager of Nippon Toyota Corporation Ltd. A crime was registered against accused No.1 and Manager of Nippon Motor Corporation Ltd. After investigation, petitioner herein had been arrayed as 3[rd] accused and final report was filed for the offence aforementioned. 4. According to the petitioner, 3[rd] respondent/de facto complainant is the real culprit in the transaction. In order to cover up his culpability, a false complaint has been lodged. De facto complainant and 1[st] accused are the real conspirators behind all the transactions. Complaint was filed only to escape from the departmental enquiry and other proceedings already initiated against him. It is also alleged that while advancing the loan the de facto complainant totally violated the procedure adopted by the Banks. Normally the procedure for advancing the loan is to Crl.M.C.6112 of 2016 4 issue the demand draft directly to the dealer from the bank with covering letter and a Form-20 noting the hypothecation details in the R.C book. That procedure was not complied. The de facto complainant transferred the entire loan amount to the account of 1[st] accused and he produced the demand draft directly to the dealer towards balance payment of the Innova car. The petitioner being the Manager of the dealer, had no option than to complete the sale procedure, registration and delivery of the vehicle. There is no evidence to show that the 3[rd] respondent ever informed the petitioner regarding the advancing of loan to the 1[st] accused for purchasing the vehicle. So the petitioner is not aware of the loan transaction between the bank and the 1[st] accused. The petitioner has not committed any illegality or irregularity in the sale of Innova car purchased by the 1[st] accused and regarding the registration of the vehicle in the RTO office. CW2, the Chief Manager of the IOB in his statement revealed lapses on the part of the de facto complainant. On an earlier occasion also, de facto complainant made such a malpractice. The de facto complainant did not insist the 1[st] accused to produce the copy of the registration certificate though it was registered on 15.4.2013. Apart from a bald vague allegation of conspiracy, there is no allegation against the petitioner. Neither the de facto complainant nor witnesses stated Crl.M.C.6112 of 2016 5 anything against the petitioner to connect him with the offence. So the action of the court below in taking cognizance against the petitioner is legally unsustainable and is an abuse of process of law. Hence this case has been filed to quash the proceedings. 5. Notice was issued to the respondents. 1[St] & 2[nd] respondents appeared through the learned Public Prosecutor Smt. V.Sreeja and the 3[rd] respondent appeared through Sri.K.N. Sivasankaran. Heard both sides. 6. According to the learned counsel for the petitioner, the entire dealings with respect to the vehicle pertaining to the 1[st] accused has been done by the de facto complainant/3[rd] respondent bank. According to him, it is the de facto complainant who issued the two demand drafts for Rs.9 Lakhs and 2.5 Lakhs each on 25.1.2013. Normal procedure while advancing a vehicle loan is to issue the demand draft directly to the dealer from the bank along with covering letter and Form-20 for noting the hypothecation details in the R.C book. But contrary to the normal procedure, the de facto complainant transferred the entire loan amount to the account of the 1[st] accused and the 1[st] accused produced the demand draft directly to the dealer and transferred the balance payment of the Innova car. The petitioner, being the Manager of the dealer of the vehicle, has Crl.M.C.6112 of 2016 6 no other option than to complete the sale procedure, registration and delivery of the vehicle. He would also contend that either at the time of giving the complaint or while giving 161 statement, the 3[rd] respondent/ de facto complainant did not state anything connecting the petitioner in the transaction. So without any material he has been arraigned as 3[rd] accused and that would cause irreparable injury and loss to him. 7. The learned counsel produced a copy of the 161 statement of the de facto complainant additionally at the time of argument. Annexure A1(6) is the copy of the complaint filed by the de facto complainant before the SHO Kottayam West police station. In that complaint he has stated that the first accused and representative of second accused/manager of Nippon Corpn.Ltd has received the DDs and letter from the bank. At the time of giving 161 statement it has been stated by him that as informed from the Managers including Sales Manager of the Nippon Tayotta that the entire responsibility is upon the Finance Manager, he contacted the Finance Manager, Regin Raj directly and over phone but he did not give any satisfactory explanation and was trying to evade him. On going through the 161 statement of the de facto complainant also it is seen that there is no reference with regard to the name of the petitioner/3[rd] accused. But on going through the copy of the final report, Crl.M.C.6112 of 2016 7 Annexure-A3, enclosed with the file, it is seen that the Chief Manager of IOB has been questioned by the police and his statement have been enclosed with final report. He has given a detailed statement regarding the procedure for advancing the vehicle loan. In page No.34 of the file, an additional statement of Govindan Potti has been enclosed with. In that he has stated that the sales Officer, sales Manager and the 1[st] accused would be having knowledge regarding the bank loan and transactions where proforma invoice have been given and it is also stated by him that the sales Officer and sales Manager and customer Punnuz, ie, 1[st] accused, together were cheating the bank. It is also stated by him that the covering letter and filled up Form-20 given by the bank Manager was removed and a false Form-20 has been prepared and they cheated the bank. 8. Learned counsel for the 3[rd] respondent bank vehemently contended that the de facto complainant was having no bad records in his career and he was actually been cheated by the accused persons. He would also contend contend that the de facto complainant filed complaint before the police as per the information regarding the factors which is within his knowledge and only on conducting investigation by the police officer, the involvement of the 3[rd] accused/petitioner has been revealed. Sri.Govindan Potti who was the Chief Manager of the bank has Crl.M.C.6112 of 2016 8 stated that till date there is no allegation against third respondent of receiving any favours and any illegal gratification colluding with the customers. It is also stated by him that even for unintentional laches departmental action would be taken and hence departmental enquiry was recommended against him. It is also stated by him that the Managers have the authority to advance loan even to ten vehicles for self employment at a time. He also stated that the sales Officer, sales Manager of the Dealer Company are well aware that there would be bank loan in transactions where proforma invoice was given. But they colluded with first accused and cheated the Bank. Moreover Sec.120B IPC also has been incorporated in the final report filed by the investigating officer. So the contention of the learned counsel for the petitioner that the petitioner is totally innocent and nobody has given any statement against him and the real culprit is the de facto complainant etc., is not seems to be prima facie acceptable. So at this stage, it cannot be found that the continuation of the proceedings against the petitioner as 3[rd] accused in C.C.601/2014 would be an abuse of process of law. 9. It is relevant in this context to quote **R.P. Kapur v. State of Punjab [AIR 1960 SC 866]** wherein while dealing with the inherent power of the High Court it has been held that inherent Crl.M.C.6112 of 2016 9 power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also held that the ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. 10. In **CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872]** , it has been held that the inherent jurisdiction is to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 11. As discussed above, prima facie there is nothing to show that the continuation of the proceedings against this petitioner in C.C.NO.601/2004 on the file of Judicial First Class Magistrate Court-III, Kottayam would be an abuse of process of law. 12. In the result, the Crl.M.C. is devoid of any merit and hence dismissed. SD/- ## **M.R.ANITHA** Judge XMrcs/25.11. Crl.M.C.6112 of 2016 10 ## APPENDIX ## PETITIONER'S ANNEXURES |**A1**|**TRUE COPY OF THE FIR IN CRIME NO.1539/2013**| |---|---| ||**OF KOTTAYAM WEST POLICE STATION**| |**A2**|**TRUE COPY OF THE FINAL REPORT IN CC**| ||**NO.601/14 ON THE FILE OF THE JFCM COURT-**| ||**III, KOTTAYAM**| |**A3(A) & (B)**|**TRUE COPY OF THE STATEMENTS OF CW-2**| |**A4**|**TRUE COPY OF THE STATEMENT OF SHRI.EAPEN**| ||**JOSEPH**|