Santosh Damodaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 CRL.MC NO. 5476 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 653/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` SANTHOSH DAMODARAN AGED 57 YEARS S/O DAMODARAN NAIR, DAMOR HOUSE, MOOLAYIL LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695010 BY ADVS. NINU M.DAS S.A.ANAND SHONE GEORGE ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`PRESENT:`** ``` SRI. RENJITH T.R, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.5476 OF 2023 ``` 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 5476 of 2023 ---------------------------------------------Dated this the 07[th] day of September, 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 the 2[nd] accused in C.C. No.653/2023 on the files of Judicial Magistrate of First Class Court – I, Thrissur, arising from Crime No.817/2003 of Thrissur East Police Station. 3. The contention of the petitioner is that the co-accused were acquitted as per Annexure-B judgment and the substratum of the case itself is gone because of that judgment. 3 ``` CRL. M.C. NO.5476 OF 2023 ``` 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. 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 4 ``` CRL. M.C. NO.5476 OF 2023 ``` 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 judgement of acquittal of the co-accused 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 petitioner will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: "6. Point Nos. 1 to 3: These points are considered together for the sake of covenience. The evedence of PW1 will clearly show that he has not insisted the 1st accused for offering an amount of Rs. 10,000/- in respect of writing the poem Narayaniyamam. Though he deposed that two cassettes were produced before the Police to show that the name of the author written in the above cassettes is Karimpuzha Sreekumar instead of his name, Karimpuzha Ramachandran, his evidence would show that these cassettes ``` CRL. M.C. NO.5476 OF 2023 ``` 5 were released by Manorama music. His evidence would further show that he has sent notice to the Manorama Music but, no reply was sent by the Manorama music. He admitted that the remaining cassettes were corrected by Manorama music as Karimpuzha Ramachandran by deleting the name Karimpuzha Sreekumar. He himself admitted that no such person is in the name of Karimpuzha Sreekumar and he does not know who is that person. His evidence would further show that the documentary in the name of Narayana Pisharadi is the venture of a group of poeple and the work done by them is only a Gurudhakshina and without any profit. The only witness examined in this case was PW2. His evidence would clearly show that he has not known anything with respect to the discussion done by PW1 and the 1st accused even though he was present at the house of PW1. The eveidence of PW5 investigating officer will clearly show that PW2 has not given statement before him to the effect that PW2 was heard the conversation about the discussion between PW1 and the 1st accused with regard to the amount. PW3 is the attestor to the mahazar for the seizure of MO I and MO II. PW4 is the Sub Inspector who registered Ext.P3 F.I.R on the basis of the complaint recceived from Chief Judicial Magistrate's Court. There is absolutely no evidence to show that both accused have cheated PW1 by offering an amount of Rs.10,000/- and obtained the poem by name Narayaniyamam. There is absolutely no evidence to show that both accused have sold 6 ``` CRL. M.C. NO.5476 OF 2023 ``` the material objects for an amount of Rs.25,000/- to the Manorama music showing the name of the author of the poem on the cassettes as Karimpuzha Sreekumar instead of showing the name as Karimpuzha Ramachandran. Considering the eveidence let in by PWs.1 to 5 it is crystal clear that the prosecution has miserably failed in proving the case against the 1st accused. These points are found against the prosecution. 7. Point No. 4: In the light of my finding on point Nos.1 to 3, I hold that the prosecution has not succeeded in proving the offencec alleged against the 1st accused. In the result, the 1st accused is found not guilty of the offences punishable u/s 417, 420 IPC and sec. 51(B), 52(A), 57 R/w 63 of Copy right Act and he is acquitted u/s 248 (1) Cr.P.C. His bail bond is cancelled and he is set at liberty. A2 is absconding. Hence case against A2 split up and refiled as C.C. 1841/09." 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 7 ``` CRL. M.C. NO.5476 OF 2023 ``` be an abuse of process of court and it will be a judicial waste of time. Hence, this Crl. M.C. can be allowed. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioner in C.C. No.653/2023 on the files of Judicial Magistrate of First Class Court – I, Thrissur, arising from Crime No.817/2003 of Thrissur East Police Station, are quashed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.5476 OF 2023 ``` 8 ## **`APPENDIX OF CRL.MC 5476/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A ``` ``` THE CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET IN C.C.NO. 226/2004 NOW PENDING AS C.C.NO. 653/2023 ON FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THRISSUR ARISING FROM CRIME NO. 817/2003 OF THRISSUR EAST POLICE STATION ``` ``` ANNEXURE BA CERTIFIED COPY OF THE JUDGMENT IN C.C.NO. 226/2004 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THRISSUR ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE