Remadevi v. Biju, Ramchand, Murukan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936 Crl.MC.No.5627 of 2014 (C) --------------------------CC 238/2014 of J.M.F.C. - II, MAVELIKKARA CRIME NO.1071/2013 OF NOORANADU POLICE STATION, ALAPPUZHA PETITIONERS/ACCUSED (2,3 & 4): --------------------------------------- 1. BIJU, AGED 51 YEARS S/O APPUKUTTAN, VAZHITHALAKKAL, KALATHUKAL ARUVIKKARA, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT PIN:695541. ## 2. RAMCHAND S/O PERUMAL, KALATHUKAL, ARUVIKKARA NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, PIN:695 541. 3. MURUKAN S/O VELLAYAN, JCB OPERATOR, VANADA KARIPOOR, NEDUMANGAD PIN:695542. NOW RESIDING AT DOOR NO:36/4 THAKKALAPARAKKODE, RUCHITHAMCODE P.O., MARTHANDAM THAMILNADU STATE, (PROPRIETOR POPULAR HYDRAULIC AT MARTHANDAM) (ADDRESS SHOWN IN THE SUMMONS) BY ADV. SRI.R.B.RAJESH RESPONDENTS/STATE: ------------------------------- ## 1. REMADEVI (DEFACTO COMPLAINANT), W/O SELVAKUMAR, RESMI BHAVANAM NEDUKULANJIMURI, PADANILAM, NOORANAD VILLAGE ALAPPUZHA DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No.5627 of 2014 (C) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : -------------------------------- ANNEXURE A: C.M.P.NO.8450/2013 DATED 23.7.2013. ANNEXURE B: FIR IN CRIME NO.1071/2013, DATED 21.8.2013 OF NOORANAD POLICE. ANNEXURE C: TRUE COPY OF THE FINAL REPORT IN C.C.NO.238/2014 OF JFMC-II, MAVELIKKARA. RESPONDENT(S)' EXHIBITS: NIL -------------------------------- // TRUE COPY // P.A TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.5627 Of 2014 --------------------------------Dated this the 20[th] day of October, 2014.** ## **O R D E R** The three petitioners herein are arrayed as accused Nos.2, 3 & 4 in Annexure-B FIR in Crime No.1071/2013 of Nooranad Police Station for offences alleged under Sections 201, 406, 417, 420 & 34 IPC. The case arose out of Annexure-A C.M.P.No.8450/2013 filed as a private criminal complaint by the defacto complainant (1[st] respondent herein) before the jurisdictional Magistrate concerned. The police after investigation submitted Annexure-C Final Report/Charge Sheet in the impugned Annexure-B Crime No.1071/2013 of Nooranad Police Station which has led to the institution of C.C.No.238/2014 on the file of the Judicial First Class Magistrate Court-II, Mavelikkara. The allegation of the prosecution is that the defacto complainant is the registered owner of the JCB bearing registration No.Kl-31-A-3992 and that she rented out the vehicle to accused No.1 for daily rent of Rs.3,000/- per day and thereafter the said vehicle was returned back to the defacto complainant and the 1[st] accused ::2:: ## **Crl.M.C.No.5627 Of 2014** sold the vehicle tot he 2[nd] accused and thereafter accused No.2 sold the vehicle to accused No.3 and thereafter accused No.3 in turn sold the vehicle to accused No.4 and that accused No.4 dismantled the vehicle into parts and transferred the same to Thrissur District. It is urged that the petitioners are innocent in this matter and they have no connection with the 1[st] respondent (defacto complainant) and the 1[st] accused. It is stated that no sale agreement or sale letter has been recovered from the petitioners and produced along with Annexure-C Final Report/Charge Sheet that the petitioners are falsely implicated in the said crime that the impugned criminal proceedings against the petitioner pursuant to Annexure-C Final Report/Charge Sheet which has led to the pendency of C.C.No.238/2014 on the file of the Judicial First Class Magistrate Court-II, Mavelikkara is an abuse of process of court and if it is allowed to be continued, it will cause severe damage and irreparable injury and hardship to the petitioner, it is averred. It is in the conspectus of these facts and circumstances, petitioners have filed the above said Crl.M.C seeking invocation of powers conferred under Section 482 ::3:: ## **Crl.M.C.No.5627 Of 2014** Cr.P.C with the prayer to quash the impugned Annexure-C Final Report/Charge Sheet in the impugned Annexure-B FIR in Crime No.1071/2013 of Nooranad Police Station which has led to the institution of C.C.No.238/2014 on the file of the Judicial First Class Magistrate Court-II, Mavelikkara and all further proceedings arising therefrom. 2. Heard Sri.R.B.Rajesh, learned counsel for the petitioners and the learned Public Prosecutor appearing for the 2[nd] respondent-State of Kerala. 3. The learned counsel for the petitioner, during the course of the submissions, relied on paragraph 61 of the decision of the Apex Court in _**Gian Singh v. State of Punjab and Anr.**_ reported in (2013) 1 SCC (Cri.) 160 = (2012) 10 SCC 303, wherein it was held that the criminal cases having overwhelmingly and predominately civil flavour stand on a different footing for the purpose of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature etc. ::4:: ## **Crl.M.C.No.5627 Of 2014** That in the instant case, the allegations arose solely out of an alleged sale transaction in respect of a vehicle and that the impugned final report/charge sheet is liable to be quashed under Sec.482 Cr.P.C. on account of the factual aspects stated hereinabove. The Apex Court in aforementioned _**Gian Singh's case**_ cited supra, after surveying many conditions of the Apex Court on the point, has categorically held that the inherent power of the High Court under Sec.482 of the Cr.P.C. is wide plenitude with no statutory limitation and is to be exercised ( _i_ ) to secure the ends of justice, or ( _ii_ ) to prevent the abuse of the process of any court (iii) to do real, complete and substantial justice. In _**Inder Mohan Goswasmi v. State of Uttaranchal**_ reported in (2007) 12 SCC 1, the Apex Court has held that every High Court has the inherent powers to act _ex debito justitiae_ to do real and substantial justice, for the administration of which the court exists or to prevent abuse of process of the court and it is contended by the learned counsel for the petitioners that the principles laid down by the Apex Court in those decisions would squarely apply in the facts of the present case. ::5:: ## **Crl.M.C.No.5627 Of 2014** 4. The learned Public Prosecutor opposed the prayer. The learned counsel for the petitioners then submitted that the petitioners may be given the liberty to approach the court below with the plea for discharge and the same may be directed to be considered and further that they may be permitted to move an appropriate application under Sec. 205 of the Cr.P.C. for exempt them from personal appearance during the considerations of the plea of discharge, till orders are passed thereon by the court below. 5. In the circumstances, it is ordered in the interest of justice, that it is open to the petitioners to file appropriate application seeking the plea of discharge in this case before the court below and in case the stage for consideration of the plea of discharge has not yet been crossed, then the court below shall consider the same on merits and in accordance with law, after reasonable to the petitioners and the prosecution. It is further ordered in the interest of justice that in case the petitioners file appropriate application under Sec. 205 of the Cr.P.C. seeking exemption of their personal appearance from the court below during the consideration of the plea of ::6:: ## **Crl.M.C.No.5627 Of 2014** discharge until orders are passed thereon, the court below shall consider the said prayer and permit exemption from the personal appearance of the petitioners during the stage of consideration of the discharge plea, until orders are passed thereon. With these observations and directions, the Crl.M.C. stands finally disposed of. **ALEXANDER THOMAS, Judge.** bkn/-