Sasikumar v. The Sub Inspector of Police, Town East Police Station, Thrissur & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **Crl.MC.No.7660 OF 2019(F)** **AGAINST THE ORDER/JUDGMENT IN CC 155/2014 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR** **CRIME NO.2463/2011 OF Town East Police Station , Thrissur** ## **PETITIONER/S:** **SASIKUMAR AGED 53 YEARS S/O. VASU KONIPARAMBIL HOUSE, PERINGANDOOR, THRISSUR 680 581.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE** ## **RESPONDENT/S:** **1 THE SUB INSPECTOR OF POLICE TOWN EAST POLICE STATION, THRISSUR 680 001.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH Crl.MC.7666/2019(G), Crl.MC.7675/2019(H), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **Crl.MC.No.7666 OF 2019(G)** **AGAINST THE ORDER/JUDGMENT IN CC 168/2014 OF SPECIAL ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT (SPECIAL COURT FOR** **CRIME NO.614/2012 OF Town East Police Station , Thrissur** ## **PETITIONER/S:** **SASIKUMAR AGED 53 YEARS S/O VASU, KONIPARAMBIL HOUSE, PERINGANDOOR, THRISSUR-680 581.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE** ## **RESPONDENT/S:** **1 THE SUB INSPECTOR OF POLICE TOWN EAST POLICE STATION, THRISSUR-680 001.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH Crl.MC.7660/2019(F), Crl.MC.7675/2019(H), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **Crl.MC.No.7675 OF 2019(H)** **AGAINST THE ORDER/JUDGMENT IN CC 117/2014 OF SPECIAL ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT (SPECIAL COURT FOR** ## **PETITIONER/S:** **SASIKUMAR, AGED 53 YEARS S/O.VASU, KONIPARAMBIL HOUSE, PERINGANDOOR, THRISSUR - 680 581.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE** ## **RESPONDENT/S:** **1 THE SUB INSPECTOR OF POLICE, TOWN EAST POLICE STATION, THRISSUR - 680 001. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** ## **OTHER PRESENT:** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH Crl.MC.7660/2019(F), Crl.MC.7666/2019(G), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.Nos.7660, 7666 & 7675 of 2019 ================== Dated this the 5[th] day of November, 2019 **O R D E R** As these three petitions have been filed by the very same accused in similar crimes registered for offences punishable under Secs. 406, 420 and 34 of the I.P.C. and Secs.3, 4, 5 and 6 of the Prize Chits & Money Circulation Schemes (Banning) Act, 1978, arising out of similar financial transactions and as the main ground for quashment of the impugned criminal proceedings to the extent it is directed as against the petitioner accused in each of these cases is that the very substratum of the prosecution case now stands demolished by the acquittal of the co-accused persons in these cases, etc., these matters are disposed on the basis of this common order. 2. The facts in each of these case are dealt with separately: (a) Crl.M.C.No.7660/2019: In this case, the petitioner herein has been arrayed originally as accused No.7 in Crime No. 2463/2011 of Thrissur Town East Police Station. The Police after investigation has filed the final report/charge sheet in the instant case, which initially led to the pendency of the Calendar Case, C.C.No. 103/2014 on the file of the Addl. Chief Judicial Magistrate's Court, Thrissur. Later, the case as against the Crl.M.C.Nos.7660, 7666 & 7675 of 2019 - : 5 :- petitioner (A-7) and A-2 was split up and the case against all the remaining 6 accused was proceeded. The Addl. Chief Judicial Magistrate's Court, Thrissur, has rendered Anx.C judgment dated 6.1.2015 in Calendar Case, C.C.No. 103/2014, whereby all the said co-accused persons, who faced trial were acquitted. Paragraphs 5 to 7 of Anx.C judgment read as follows: - _“5. The points that arise for determination are :-_ _1. Whether the accused are guilty for criminal breach of trust?_ _2. Whether the accused are guilty for cheating and thereby dishonestly induced PW1 and her daughter to deliver money are alleged?_ _3. Whether the accused are guilty for unauthorisedly conducting money circulation scheme as alleged?_ _4. Whether the accused are guilty for enrolling PW1 and her daughter in the money circulation scheme and collecting money from them?_ _5. Whether the 1[st] accused company is guilty for conducting unauthorized money circulation scheme and whether other accused are responsible for its conduct?_ _6. If so, what is the punishment to be awarded to the accused?_ _6. Points 1 to 6 :- For the sake of convenience and brevity these points are discussed together. This case was registered by police on the private complaint filed by PW1 before the Chief Judicial Magistrate, Thrissur which was forwarded to Police u/s. 156(3) CrPC. The complaint was marked as Exhibit P1. Eventhough in Exhibit P1 there are allegations of criminal breach of trust, cheating and the unauthorized conduct of money circulation schemes by the accused persons as per which PW1 and her daughter lost money, she turned hostile to the prosecution stating that she and her daughter had received products for Rs.35,000/- each paid by them. She further stated that her daughter is now residing in Dubai and Exhibit P1 was filed on a misunderstanding. As the defacto complainant has settled with the accused, examination of the remaining witnesses given up by the learned Prosecutor. As there is no incriminating evidence against the accused questioning u/s. 313(1) (b) CrPC dispensed with. There is no evidence showing the conduct of any unauthorized money circulation scheme by the accused. The prosecution has failed to prove the guilt of the accused as alleged and therefore, I find them not guilty for the offences u/s. 406, 420 r/w. Sec. 34 of IPC and Sections 3,4,5 and 6 of Prize Chits and_ Crl.M.C.Nos.7660, 7666 & 7675 of 2019 - : 6 :- ## _Money Circulation Schemes (Banning) Act, 1978._ _7. In the result, accused Nos. 1,3 to 6 and 8 are acquitted u/s. 248(1) CrPC for the offences u/ss. 406, 420 r/w. Sec. 34 of Indian Penal Code and Sections 3, 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Their bail bonds stand cancelled and they are set at liberty.”_ ## (b) Crl.M.C.No. 7666/2019: In this case, the petitioner has been originally arrayed as accused No.7 in Crime No. 614/2012 of Thrissur Town East Police Station for the very same offences mentioned herein above and the Police after investigation, has filed final report/charge sheet, which initially led to the pendency of Calendar Case C.C.No. 50/2014 on the file of the Addl. Chief Judicial Magistrate's Court, Thrissur. In this case also the trial as against the petitioner herein has been split up and the trial proceeded as against the six of the other accused persons in the said case, whereby the Addl. CJM, Thrissur, has rendered Anx.C judgment dated 19.2.2015 in Calendar Case, C.C.No. 50/2014 on the file of the Addl. Chief Judicial Magistrate's Court, Thrissur. In this case also, the case as against the petitioner was split up and the case as against some of the other accused persons proceeded, whereby the six accused persons, who faced trial, were acquitted. Paragraphs 7 and 8 of Anx. C judgment in this case read as follows: _“7. Points 1 to 6:- For the sake of convenience and brevity these points are discussed together. This case was registered by police on the_ Crl.M.C.Nos.7660, 7666 & 7675 of 2019 - : 7 :- _basis of the private complaint filed by PW1 before Chief Judicial Magistrate, Thrissur and forwarded to the Police u/s. 156(3) CrPC. Eventhough there are allegation of unauthorized money circulation business and criminal breach of trust and cheating against the accused and as a result of which PW1 lost money, she turned hostile to the prosecution stating that she has received products for Rs.19,900/- paid by her. PW2 and PW3 also deposed that they have received products for the mount of Rs.19,900/- each paid by them to the accused. PW1 and PW3 stated that no amount is due to them from the accused. According to PW1, Ext. P1 complaint was filed on a misunderstanding and witnesses have stated that the matter is settled. In the circumstances, examination of the remaining witnesses were given up by the learned Asst. Public Prosecutor. As there is no incriminating evidence against the accused questioning u/s. 313 (1) (b) CrPC dispensed with. The prosecution has failed to prove the guilt of the accused as alleged and therefore, I find the accused No'. 1, 3 to 6 and 8 are not guilty for the offences u/ss. 406, 420 r/s. Sec. 34 of IPC and Sections 3, 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978._ _8. In the result, accused Nos. 1,3 to 6 and 8 are acquitted u/s. 248(1) CrPC for the offences u/ss. 406, 420 r/w. Sec. 34 of Indian Penal Code and Sections 3 ,4, 5 and 6 of Prize chits and Money Circulation Schemes (Banning) Act, 1978. Their bail bonds stand cancelled and they are set at liberty.”_ ## (c) Crl.M.C.No. 7675/2019: In this case, the petitioner has been originally arrayed as accused No.7 in Crime No. 235/2012 of Thrissur Town East Police Station for the very same offences mentioned herein above and the Police after investigation, has filed final report/charge sheet, which initially led to the pendency of Calendar Case C.C.No. 38/2014 on the file of the Special Addl. Chief Judicial Magistrate's Court, Thrissur. In this case also the trial as against the petitioner herein has been split up and the trial proceeded as against the six of the other accused persons in the said case, whereby the Special Addl. CJM, Thrissur, has rendered Anx.C judgment dated 26.8.2015 in Calendar Case, Crl.M.C.Nos.7660, 7666 & 7675 of 2019 - : 8 :- C.C.No. 38/2014 on the file of the Special Addl. Chief Judicial Magistrate's Court, Thrissur. In this case also, the case as against the petitioner was split up and the case as against some of the other accused persons proceeded, whereby the six accused persons, who faced trial, were acquitted. Paragraphs 7 to 9 of Anx. C judgment in this case read as follows: _“ - 7.Point No.1: PW1 Anis Jose, the defacto complainant along with the accused has filed a petition, CMP 2845/15 for compounding the offences with a petition, CMP 2845/15 for permission U/s. 320(2) CrPC. Her statement has been recorded therein. She has stated that the matter has been settled and she has no further grievance against the accused. Out of the offences alleged against accused, the offences punishable U/s. 420 IPC is compoundable U/s. 320 (2) CrPC. Hence permission has been granted to compound this offence. Accordingly composition of this offence has been recorded. So this point is found in favour of the accused._ _8. Point No.2 to 6:- Considering the facts and circumstances of the case and available evidence of record these points can be considered together. The sole witness examined, PW1 is the defacto complainant and she proved Ext. P1 complaint. The Sub Inspector of Police, Thrissur Town East Police Station registered the above crime on the basis of the said complaint and on investigation filed charge sheet against the accused alleging commission of the aforesaid offences. However, PW1 has turned hostile to the prosecution. In the evidence she has stated that she had invested Rs.20,000/- in TIK Innovators marketing Limited Company and that she obtained products for the said amount. She has stated that there is no amount due to her in the said transaction. With the permission of the Court the learned Assistant Public Prosecutor has invoked the power under proviso to Sec. 162 CrPC and Sec.154 of the Evidence Act. Though PW1 was invited to the previous statements in Ext. P1 complaint and also recorded by the investigating Officer, she denied all those statements and there is nothing brought out from her evidence to incriminate the accused in the commission of the offences. She further stated that the matter has been settled and she has no further grievance against the accused. She denied the suggestion that she is falsely giving evidence only to support the accused. Considering the fact that the matter has been settled between the parties and the nature of the evidence given by the sole material witness, the remaining witnesses are rightly given up by learned Assistant Public prosecutor. I am also satisfied that the examination of those witnesses will not serve any purpose. So from the available evidence on record the prosecution has not succeeded in proving the guilty of the accused. As such no doubt the points under consideration are only to be answered against the prosecution. The points are answered accordingly._ Crl.M.C.Nos.7660, 7666 & 7675 of 2019 - : 9 :- _8. Point No.7:- As per the finding in Point NO.1 to 6 the accused No.1,3 to 6 are found not guilty of the offences punishable U/s. 420 r/w Sec.34 of Indian Penal code and Sections 3, 4, 5 and 6 of the Act and they are entitled for acquittal of these offence._ _9. In the result,_ _1. The offences punishable U/s. 420 IPC is compounded with the permission of the Court and it shall have the effect of acquittal of accused No. 1, 3 to 6 and 8 U/s. 320(8) CrPC._ _2. The accused Nos.1,3 to 6 and 8 are not found guilty of the offences punishable U/ss. 3, 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and they are acquittal of these offences U/s. 248(1) CrPC. The bail bond executed by them stand cancelled and they are set at liberty forthwith._ _3. The case against 2[nd ] and 7[th ] accused is split up and refiled as CC 07/19.”_ 3. Heard Sri.K.M.Sathyanatha Menon, learned counsel appearing for the petitioner accused in these cases and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for respondent State. 4. The learned counsel for the petitioner would point out that the very foundation of the prosecution case has been shattered by the acquittal of the co-accused persons in these five cases and that therefore, continuance of the impugned criminal proceedings is nothing but a futile exercise and it would amount to abuse of the process of the court. 5. After having heard both sides and after going through the pleadings and materials on records, more particularly Anx.C judgments in these five cases, this Court is of the constrained to take Crl.M.C.Nos.7660, 7666 & 7675 of 2019 **==> picture [36 x 9] intentionally omitted <==** the view that the very substratum of the prosecution case has been demolished by the acquittal of the co-accused persons and therefore, any further continuance of the impugned criminal proceedings may be a futile exercise and may amount to wastage of precious time of the Police machinery, prosecution agency as well as the trial court. 6. This Court in the cases as in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552, _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011(2) KHC 8123, and _**Abbas v. State of Kerala**_ reported in 2013 (2) KLT 976, has held that if the substratum of the prosecution is demolished by the acquittal of the co-accused, this Court could exercise the powers under Sec.482 of the Cr.P.C. to consider the prayer of quashment of the impugned criminal proceedings against the other accused. Accordingly, it is ordered as follows: - _(i) In Crl.M.C.No. 7660/2019, the impugned Anx.B final report/charge sheet filed in Crime No.2463/2011 of Thrissur Town East Police Station, which has led to the pendency of Calendar Case, C.C.No. 155/2014 on the file of the Addl. Chief Judicial Magistrate's Court, Thrissur and all further proceedings arising therefrom pending against the accused therein will stand quashed._ - _(ii) In Crl.M.C.No.7766/2019, the impugned Anx.B final report/charge sheet filed in Crime No. 614/2012 of Thrissur Town East Police Station, which has led to the pendency of Calendar Case, C.C.No. 168/2014 on the file of the Addl. Chief Judicial Magistrate's Court, Thrissur and all further proceedings arising therefrom pending against the accused therein will stand quashed._ - _(iii) In Crl.M.C.No.7675/2019, the impugned Anx.B final report/charge sheet filed in Crime No. 235/2012 of Thrissur Town East Police Station, which has led to the pendency of Calendar Case, C.C.No. 117/2014 on the file of the Special Addl. Chief Judicial Magistrate's Court, Thrissur and all further proceedings arising therefrom pending against the accused therein will stand quashed._ The petitioner will produce certified copies of this order before the Crl.M.C.Nos.7660, 7666 & 7675 of 2019 **==> picture [36 x 9] intentionally omitted <==** investigating officers concerned and the competent courts below concerned. The office of the Advocate General will forward copy of this order to the investigating officers concerned for information. With these observations and directions, the Criminal Miscellaneous Cases will stand finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.Nos.7660, 7666 & 7675 of 2019 ## **APPENDIX OF Crl.MC 7660/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE COMPLAINT FILED AS C.M.P. NO. 9025/11 DATED 30.11.2011 BEFORE THE CHIEF JUDICIAL MAGISTRATE, THRISSUR.** **ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BY THE 1ST RESPLENDENT IN CRIME NO. 2463/2011 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **ANNEXURE B1 TYPED COPY OF ANNEXURE B.** **ANNEXURE C CERTIFIED COPY OF THE JUDGMENT IN C.C. NO. 103/2014 DATED 6.1.2015 ON THE FILES OF COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE THRISSUR.** Crl.M.C.Nos.7660, 7666 & 7675 of 2019 ## **APPENDIX OF Crl.MC 7666/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE COMPLAINT FILED AS CMP NO 1564/12 DATED 30.12.2011 BEFORE THE CHIEF JUDICIAL MAGISTRATE, THRISSUR** **ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BY THE 1ST RESPONDENT IN CRIME NO 614/2012 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** **ANNEXURE B1 TYPED COPY OF ANNEXURE B** **ANNEXURE C CERTIFIED COPY OF THE JUDGMENT IN C.C NO 50/2014 DATED 19.2.2015 ON THE FILES OF COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THRISSUR** Crl.M.C.Nos.7660, 7666 & 7675 of 2019 ## **APPENDIX OF Crl.MC 7675/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE COMPLAINT FILED AS M.P.NO.189/12 DATED 30/12/2011 BEFORE THE CHIEF JUDICIAL MAGISTRATE, THRISSUR. ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BY THE 1ST RESPONDENT IN CRIME NO.235/2012 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR. ANNEXURE B1 TYPED COPY OF ANNEXURE B. ANNEXURE C CERTIFIED COPY OF THE JUDGMENT IN C.C.NO.38/2014 DATED 26/8/2015 ON THE FILES OF COURT OF THE SPECIAL ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THRISSUR.**