Shajahan and Sabeena v. State of Kerala and Sunil Kumar, Biju.T and Shahul Hameed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935** ## **Crl.MC.No. 3730 of 2013 ()** ## **-------------------------------------** ## **AGAINST THE ORDER IN CC 1062/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,TRIVANDRUM** **--------------** **PETITIONER(S)/A1 & A2: ------------------------------------** ## **1. SHAJAHAN, AGED 38 YEARS,** - **S/O.SHAHUL HAMEED, PCQ 6077, AR CAMP KOLLAM, RESIDING AT T.C.43/117(A), ARA.5(A), ANNIYARA LANE, OPPOSITE KAMALESHWARAM MARGIN FREE SHOP, KAMALESHWARAM WARD, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.** **2. SABEENA, AGED 32 YEARS, D/O.SEENATH, T.C.43/117(A), ARA.5(A) ANNIYARA LANE, OPPOSITE KAMALESHWARAM MARGIN FREE SHOP, KAMALESHWARAM WARD, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.SHAJIN S.HAMEED** ## **COMPLAINANT(S)/STATE,CW1 TO CW3:** **---------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, FORT POLICE STATION, REPRESENTED THROUGH THE PUBLICPROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** ## **2. SUNIL KUMAR, AGED 43 YEARS,** - **(CW1), S/O.NARAYANAN NAIR, PCQ 5872, RESIDING AT SREE RADHAM HOUSE, SMRA HOUSE, NO.296, SOUTH MULAMKADAKOM RESIDENCE ASSOCIATION NEAR THIRUMULLAVAROM VISHNUTHKAVU TEMPLE, PUNNATHALACHERIYIL, KOLLAM WEST VILLAGE, KOLLAM DISTRICT, PIN-691001.** **PJ** **...2/-** **..2..** ## **Crl.MC.No. 3730 of 2013 ()** ## **-------------------------------------** ## **3. BIJU.T, AGED 36 YEARS,** **(CW2), S/O.THANKAPPAN ACHARI, 3722, HAWILDAR, KAP-3 BATTALION, RESIDING AT ACHARI ASHIKATHU VEEDU, CHAKKUVARAKKAL JUNCTION, VETTIKAVILA ,PANCHAYATH, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN-691506.** **4. SHAHUL HAMEED, AGED 55 YEARS, (CW 3), S/O.MOHAMMED KANNU, T.C.49/937, NEAR RAINBOW NURSERY, KONCHIRA KANIPPURA MUSLIM MOSQUE, KILLIPPANKULAM WARD, MANACAUD VILLAGE, THIRUVANANTHAPURAM, PIN-695009.** **R1 BY PUBLIC PROSECUTOR SMT.S.HYMA R2 - 4 BY ADV. SRI.BIJU VARGHESE ABRAHAM** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3730 of 2013 ()** - **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** - **------------------------------------------** **ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT IN C.C.1062/2012 PENDING ON THE FILE OF THE JUDICIAL IST CLASS MAGISTRATE COURT- II, THIRUVANANTHAPURAM.** **ANNEXURE B NOTARIZED AFFIDAVIT OF THE 2ND RESPONDENT** **ANNEXURE C NOTARIZED AFFIDAVIT OF THE 3RD RESPONDENT** **ANNEXURE D NOTARIZED AFFIDAVIT OF THE 4TH RESPONDENT.** **RESPONDENT(S)' ANNEXURES** - **---------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **V.K.MOHANAN, J** ## **--------------------------------------Crl.M.C.No.3730 of 2013** ## **----------------------------------------** Dated this the 10[th] day of September, 2013 ## **ORDER** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioners, who are accused in C.C.No.1062/2012 of the Judicial First Class Magistrate Court-II, Thiruvananthapuram which is a case instituted upon the police report for the offences punishable under Sections 120B, 406, 420, 506(i) and r/w Section 34 of I.P.C., with a prayer to quash all proceedings as against the petitioners in Annexure A final report, pending as C.C.No.1062/2012 pending on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram as the matter is settled out of court. 2. The allegation in the final report is that A1 who joined as a police constable in Kerala Police Service during the year 1998, with an intention to cheat CW1 and CW2 who are his subordinates and CW3 who is the friend of CW1 and to make illegal gain, he along with A2 after conspiring criminally told CW1 and CW2 that A2 is suffering from cancer and for her treatment he need Rs.2 lakhs and thereby induced them to **Crl.M.C.No.3730 of 2013** 2 stood as sureties by using their salary certificates before the Thiruvananthapuram Urban Bank, Manacaud Branch. Further, CW3 also stood as surety as per the request of CW1 by which the petitioners availed a loan for Rs.1,80,000/- and failed to repay the loan amount. Therefore, the bank recovered the due amount from the salary of CW1. When CW1 asked A1 to repay the loan amount, he criminally intimidated him. Thus, according to the prosecution the accused has committed the offences punishable under Sections 120B, 406, 420, 506(i) and r/w Section 34 of I.P.C. The petitioners is that during the pendency of the above case the entire dispute is settled with the defacto complainant who is the second respondent and respondents 3 and 4 who are another victim. The respondents 2 to 4 are respectively sworn into Annexures- B to D affidavits. 3. Heard the learned counsel for the petitioners as well as the second respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the **Crl.M.C.No.3730 of 2013** 3 continuation of the proceedings in the above case is abuse of process of law and proceedings. 5. The learned counsel for the second respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioners and he has no grievance against them. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only Sections 120B, 406, 420, 506(i) and r/w Section 34 of I.P.C., which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably **Crl.M.C.No.3730 of 2013** 4 settled the matter. From the submission made by the counsel for the second respondent, it appears to me that the de facto complainant has no further grievance against the petitioners accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012 (4) KLT 108(SC)]. In which case, the Supreme Court has held as follows:- _“57. 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 S.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 F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.._ ## It is further held as follows:- “...... _... But the criminal cases having_ **Crl.M.C.No.3730 of 2013** 5 _overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial,mercandile, 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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........”_ According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. Thus, I am of the view that as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of **Crl.M.C.No.3730 of 2013** 6 proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing Annexure-A and all further proceedings pending against the petitioners in C.C.No.1062/2012 of the Judicial First Class Magistrate Court, Thiruvananthapuram. Sd/- **V.K.MOHANAN, JUDGE** AS