Sasi Kumar K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936** ## **Crl.MC.No. 3104 of 2009** **---------------------------------------** ## **C.C.NO. 465 OF 2007 OF CHIEF JUDICIAL MAGISTRATE COURT - III ,KOTTAYAM** ## **------------------** ## **PETITIONER / ACCUSED :** **--------------------------------------** **SASI KUMAR K., M.I.G. 47, SURABHI NAGAR, KAKKANAD, KOCHI-30.** **BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE) ADVS.SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SMT.AMMU CHARLES SRI.S.M.PRASANTH** ## **RESPONDENTS / STATE & COMPLAINANT :** **---------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THE SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, KOTTAYAM.** **3. THE ASSISTANT GENERAL MANAGER, REPRESENTING STATE BANK OF TRAVANCORE, MAIN BRANCH, KOTTAYAM.** **R1 & R2 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R3 BY ADVS. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 3104 of 2009** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **ANNEXURE A : A TRUE CERTIFIED COPY OF THE STATEMENT SUBMITTED BY THE COMPLAINANT BEFORE THE LOWER COURT.** **ANNEXURE B : A TRUE COPY OF THE JUDGMENT DATED 19.06.2009 IN CRL.M.C.NO.71/09 OF THIS HON'BLE COURT. ANNEXURE C : TRUE CERTIFIED COPY OF CHARGE SHEET.** **RESPONDENT(S)' ANNEXURES:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.3104 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of June, 2014** ## **O R D E R** This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure C Final Report in C.C. No.465/2007 before the Judicial First Class Magistrate Court III, Kottayam under Sections 408, 420, 477(A) of the Indian Penal Code by invoking inherent jurisdiction. 2. The petitioner, who is the accused in the above case, which was charge sheeted by the Kottayam West Police Station in crime No.169/2003, contended that the third respondent is not interested in prosecuting the matter and if trial is proceeded, it will lead to manifest injustice and prejudice to him. The learned counsel for the petitioner submits that in similar circumstances, a complaint filed by a Co-operative Society had been quashed by this Court invoking inherent jurisdiction. Hence he prays to quash Annexure C. 3. The third respondent is the complainant in the above case, who gave Annexure A statement to the Sub Crl.M.C.No.3104 of 2009 2 Inspector of Police, Kottayam West Police Station, on the basis of that crime No.169/2003 was registered. The third respondent alleged that while he was working as Assistant General Manager, Kottayam Main Branch, the former manager K. Sasi Kumar had committed misappropriation of the accounts for which, he was suspended from service in the year 2003 and subsequently removed from service in the year 2004. On 17.4.2003 he swindled Rs.7,36,760/- from the customers account. After investigation the police filed Annexure C Final Report. 4. The learned counsel appearing for the petitioner contended that the petitioner and the third respondent have settled the matter mutually and the petitioner had repaid the entire amount and if the case is tried in a Court of law, it will be mere abuse of the process of the Court. He produced Annexure B order in Crl.M.C.71/2009 and prays to invoke the inherent jurisdiction of this Court. 5. The learned counsel for the third respondent strongly resisted the above contention and contended that though the amount due was remitted by the petitioner, the Crl.M.C.No.3104 of 2009 3 third respondent, which is a banking institution dealing with public money, is not in a position to concede to the arguments advanced by the petitioner. The offence, which was committed by a senior manger working in that capacity, in a bank, cannot be quashed simply on the basis of repayment. The third respondent relies on the decision of the Apex Court in **Central Bureau of Investigation v. Jagjit Singh [(2013) 10 SCC 686]** . 6. The petitioner is the sole accused in crime No.169/2003 of Kottayam West Police Station, which was registered under Sections 408, 420 and 477(A) of IPC. The above case was registered on the basis of the information given by the third respondent, that the petitioner misappropriated Rs.7,36,760/- from the customers' accounts. The petitioner admitted that he repaid the entire amount and nothing survives. But the third respondent is not satisfied with those repayments alone. The Apex Court in CBI's case referred to (supra) held as follows: “In the present case, the specific allegation made against the respondent-accused is that he obtained the loan on the basis of forged document with the aid of officers of Indian Overseas Bank (IOB). On investigation, having found the ingredients of cheating and dishonestly Crl.M.C.No.3104 of 2009 4 inducing delivery of property of IOB (Section 420 IPC) and dishonestly using as genuine a forged document (Section 471 IPC) charge-sheet was submitted under Sections 420/471 IPC against the accused persons. The debt which was due to IOB was recovered by the Bank pursuant to an order passed by the Debts Recovery Tribunal. Therefore, it cannot be said that there is a compromise between the offender and the victim. The offences when committed in relation with banking activities including offences under Sections 420/471 IPC have a harmful effect on the public and threaten the well-being of the society. These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Prima facie, one may state that the bank is the victim in such cases but, in fact, society in general, including customers of the bank are the sufferers.” The learned counsel for the petitioner relied on another decision of the Apex Court in **Gian Singh v. State of Punjab [(2012) 10 SCC 303]** and submitted that in cases where offences are not compoundable, this Court can exercise the power under Section 482 of Cr.P.C. In paragraph 61 it was held as follows: “61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due Crl.M.C.No.3104 of 2009 5 regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes 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 and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the Criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding” In the above decision it is observed that any compromise between victim and offender in relation to offences under special statute like Prevention of Corruption Act or the Crl.M.C.No.3104 of 2009 6 offences committed by public servants while working in that capacity cannot be quashed. 7. The third respondent is a public institution which is functioning as per the direction of the Reserve Bank of India. The specific allegation made against the petitioner is that he swindled huge amounts from the customers' accounts by forging documents. On investigation it was found that there are ingredients of cheating and forging of documents and a charge sheet was submitted under Sections 408, 420, 477(A) of IPC. The debt due to the bank was already recovered. Since it is a public money petitioner cannot contend that the third respondent who is working as a public officer in that capacity compromised the criminal case between the offender and the victim. Accepting the legal principle it is not possible to accept the contention advanced by the learned counsel appearing for the petitioner. In Crl.M.C.No.71/2009 a learned single Judge of this Court quashed the proceedings in C.C. No.807/2005 on the ground that the director board of the Co-operative Society had withdrawn the criminal prosecution. That Crl.M.C.No.3104 of 2009 7 parameter cannot be adopted in this case when the third respondent is strongly opposing the alleged compromise. Therefore, I am of the opinion that there is no merit in the above contention. Inherent jurisdiction under Section 482 Cr.P.C. can be invoked only to make such orders as may be necessary, to give effect to any order under this Code or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. In the present case, the ground alleged does not amount to abuse of the process of the court. It is the third respondent, who has to decide whether such a case has to be proceeded or not. Prima facie the Bank is the victim but the society in general and the other customers of the bank in particular are the sufferers. Therefore, I am of the opinion that there is no merit in this petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/