Selu v. State of Kerala and Joy John

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **CRL.MC NO. 1768 OF 2021** **(CRIME NO. 316 OF 2012 OF OONNUKAL POLICE STATION, ERNAKULAM DISTRICT)** **AGAINST THE ORDER/JUDGMENT IN CC 374/2020 OF JUDL. MAGISTRATE OF FIRST CLASS,** ## **KOTHAMANGALAM, ERNAKULAM** ## **PETITIONER/2ND ACCUSED:** **SELU, AGED 54 YEARS** **W/O. SIDDIQUE, RESIDING AT MARATTIKUNNIL HOUSE, ANAKOODU BHAGAM, THODUPUZHA VILLAGE AND POST, IDUKKI DISTRICT.** **BY ADVS. T.MADHU SMT.REKHA NAIR SMT.C.R.SARADAMANI SRI.SHAHID AZEEZ SMT.CHANDRALEKHA SANU** ## **RESPONDENTS/STATE OF KERALA:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 THE STATION HOUSE OFFICER OONNUKAL POLICE STATION, ERNAKULAM DISTRICT - 689 647.** - **3 JOY JOHN AGED 70 YEARS** **S/O. JOHN, THURAKKAL HOUSE, NEELIMATTOM P. O., KOTHAMANGALAM, ERNAKULAM DISTRICT - 686 693.** ## **BY ADV L.RAM MOHAN** ## **OTHER PRESENT:** **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT** **ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.1768 of 2021 **2** ## **ORDER** This is a petition filed under Section 482 of the Cr.P.C. by the 2[nd] accused in C.C. No. 374 of 2020 of the Judicial First Class Magistrate's Court, Kothamangalam, which arose out of the final report in Crime No. 316 of 2012 of Oonnukal police station. That crime was registered basing on Annexure-A1 complaint preferred by the 3[rd] respondent before the Court, which was forwarded to the police for registering a crime and investigation. Thus the crime was registered alleging offence punishable under Sections 120B, 465, 467, 471 read with Section 34 of the IPC. On conclusion of investigation, charge sheet was laid against the petitioner and her husband alleging the above stated crime. Now contending that there is absolutely no basis in the allegations against the petitioner she has moved this Court for quashing the proceedings. 2. I heard the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent. 3. Relying on the decision reported in Sumathy S Menon v. Rajendran T. K. and others {2010 (2) KHC 531} the learned counsel for the petitioner submitted that the facts are similar and Crl.M.C.No.1768 of 2021 **3** that such an allegation will not sustain against the petitioner, who is the 2[nd] accused. According to learned counsel, the petitioner is not responsible for the acts of her husband, neither mens rea nor actus reus can be attributed against her. The complainant, the 3[rd] respondent has no allegation that at the time of signing and handing over the cheque the petitioner was present. Therefore, the allegations will not sustain against her and she is entitled to be discharged from the allegations. 4. The learned counsel for the 3[rd] respondent strongly opposed the application. According to the learned counsel, there is suppression of material facts. Earlier he had moved O.P. (Crl.) No. 382 of 2020 for speedy disposal of the case, which was disposed of on 22.12.2020 and the petitioner had appeared only thereafter, on 03.03.2021. According to the learned counsel, the facts in Sumathy S Menon's case, quoted supra and facts against the petitioner are different and distinct therefore the decision in that case cannot be made applicable here. The learned counsel also invited by pointed attention to paragraph 9 of Annexure-A1 complaint, where it is specifically alleged that a criminal conspiracy has been hatched Crl.M.C.No.1768 of 2021 **4** between the husband and wife and everything was done with the intention of obtaining illegal benefit to the accused and to cause corresponding loss to the 3[rd] respondent. 5. The background facts are not in dispute. It is alleged that a cheque for Rs. 1,00,000/- was issued by the husband of the petitioner, who is the 1[st] accused in the Calender Case, in favour of the 3[rd] respondent, in discharge of the amount borrowed by him from the 3[rd] respondent. The 3[rd] respondent presented the cheque for collection in his bank, but it returned due to insufficiency of funds and also since drawer's signature had differed. When the statuory lawyer notice was sent, the 1[st] accused, husband of the petitioner did not respond. Thereafter, the 3[rd] respondent filed a complaint alleging offence under Section 138 of the Negotiable Instruments Act. After taking evidence, by Annexure-A4 judgment, the learned Judicial First Class Magistrate-II, Thodupuzha acquitted her husband for reasons which are obvious. During the course of trial of that case it came out that the cheque belonged to the petitioner, who is the wife of the accused in S. T. No. 24 of 2011. On that basis, the husband of the petitioner was Crl.M.C.No.1768 of 2021 **5** acquitted and thereafter, Annexure-A1 complaint was preferred before Court in September, 2012 alleging the above stated offences. 6. I have no doubt that the allegations in Annexure-A1 complaint cannot be go in tune with Sumathy S Menon's case. There, the son had allegedly issued a cheque from the account of the mother so that offence under Sections 417 and 420 read with Section 34 of the IPC was alleged against the mother and the son and then the mother approached this Court under Section 482 of the Cr.P.C. There was no allegation in the complaint in that case that the mother had played any role in the alleged commission of crime. That prompted this Court to quash the proceedings against the mother. But here, as rightly pointed out by the learned counsel for the 3[rd] respondent, there is specific allegation that everything was done by the 1[st] accused after hatching a conspiracy with the wife, the petitioner. It is essentially a matter of evidence whether any criminal conspiracy was hatched prior to the issuance of the subject cheque by the 1[st] accused in favour of the 3[rd] respondent. The allegations are on different plane and therefore, it is not Crl.M.C.No.1768 of 2021 **6** appropriate for this Court borow the dictum in Sumathy S Menon's case to exonerate the petitioner. 7. Moreover, the burden is completely on the complainant, the 3[rd] respondent to prove the said criminal conspiracy and other matters alleged against the petitioner and her husband. It is not appropriate for this Court to venture into an enquiry and conduct parallel trial and to take a view that the petitioner is totally innocent on the premise that she was not present at the time of issuing the cheque; whether she had knowledge about the same, had mens rea in handing over her security documents to the husband etc. are matters of evidence to be considered at the time of trial. 8. It is the settled propositions of law that this Court while considering a petition under Section 482 of the Cr.P.C. cannot embark upon an enquiry in to the disputed questions of facts which is the realm of the trial Court. Moreover, a proceedings can be quashed by this Court only in exceptional circumstances if overwhelming reasons are made out by the party. Here it is too early for this Court to say that the petitioner is totally innocent, she had no knowledge about the alleged mischief if any committed by Crl.M.C.No.1768 of 2021 **7** her husband etc. Therefore, it is only appropriate that she face the trial. 9. If she is so confident that she is totally innocent and there is absolutely no material worth the name to proceed against her, it is open to her to move a petition under Section 239 of the Cr.P.C. and seek discharge. Instead she has rushed to this Court for quashing the proceedings. Having regard to the allegations, I do not think it is proper for this Court to venture consideration of the arguments of the petitioner. In the result, the Criminal Miscellaneous Case lacks merit and is dismissed. Sd/- **K. HARIPAL JUDGE** RMV/04/10/2021 Crl.M.C.No.1768 of 2021 **8** ## **APPENDIX OF CRL.MC 1768/2021** ## **PETITIONER ANNEXURE** **ANNEXURE A1 THE CERTIFIED COPY OF THE COMPLAINT IN CMP NO.2212/2012 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOTHAMANGALAM.** **ANNEXURE A2 THE TRUE COPY OF THE FIR DATED 19.09.2012 IN CRIME NO.316/2012 OF OONNUKAL POLICE STATION. ANNEXURE A3 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.316/2012 OF OONNUKAL POLICE STATION.** **ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED 10.05.2012 IN S.T.NO.24/2011 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, THODUPUZHA.**