Sreekanth and Kuttisankara Guptan v. State of Kerala and Devika Nair

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 CRL.MC NO. 6733 OF 2016 AGAINST C.C.NO.1339/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPALAM ARISING FROM CRIME NO.136/2015 OF SREEKRISHNAPURAM POLICE STATION, PALAKKAD.] ## PETITIONERS/ACCUSED: 1 SREEKANTH AGED 34 YEARS S/O KUTTISANKARA GUPTAN, AGED 34 YEARS,VALAPPILTHODI HOUSE, VAYILLAMKUNNU,KADAMPAZHIPURAM AMSOM DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT.678633. 2 KUTTISANKARA GUPTAN S/O APPU GUPTAN, AGED 69 YEARS, VALAPPILTHODI HOUSE,VAYILLAMKUNNU, KADAMPAZHIPURAM ASMOM DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT.678633. BY ADV SRI.RAJESH SIVARAMANKUTTY ## RESPONDENTS/STATE/DE FACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2 DEVIKA NAIR W/O RAJAGOPALAN NAIR, AGED 53 YEARS,SIVAPRIYA, SCOLAR TOWER, KALPATHY,PALAKKAD DISTRICT.678001. BY ADVS. R1 BY SRI.ARAVIND V. MATHEW, PUBLIC PROSECUTO RR BY ADV.SRI.T.C.SURESH MENON THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.10.2021, THE COURT ON 16.11.2021 PASSED THE FOLLOWING: CRL.MC No.6733 of 2016 2 ## O R D E R The petitioners are accused in C.C.No.1339/2015 on the file of the Judicial First Class Magistrate Court, Ottappalam, which arises from Crime No.136/2015 of Sreekrishnapuram Police Station, Palakkad. This petition is filed by the petitioners praying for invocation of the powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC) and to quash Annexure-F final report submitted in the above case and all further proceedings pursuant thereto. The offences alleged as per the aforesaid final report are under Sections 420, 506(i) of the Indian Penal Code (IPC) and under Sections 13 and 17 of the Kerala Money Lenders Act, 1958. 2. The Prosecution case is as follows: The 2[nd] respondent on 14.8.2015 submitted a complaint before the Sub Inspector of Police, CRL.MC No.6733 of 2016 3 Sreekrishnapuram Police Station, Palakkad, alleging that in the year 2006, while she was constructing a house at Kadampazhipuram, she borrowed an amount of Rs.1 lakh from the 1[st] petitioner on the basis of security of certain documents including signed blank cheque drawn on HDFC Bank, Kozhikode, signed blank papers, signed blank cheques drawn on Punjab National Bank, Kadampazhipuram, revenue affixed blank paper etc. According to her, towards repayment, the accused demanded Rs.8,250/-per month as interest. Later, she has availed a housing loan and repaid the entire amount along with interest. However, the petitioners have not returned the signed cheque and other documents even after settlement of the said loan account and the said documents were retained by the petitioners by informing that it will be handed over to them very soon. Later, on 30.11.2013, the 2[nd] petitioner issued a lawyer notice demanding return of Rs.9,75,000/- stating that an amount of Rs.9,95,000/- was borrowed from CRL.MC No.6733 of 2016 4 him on 27.8.2013 and they paid only Rs.20,000/towards repayment. Accordingly, they demanded Rs.9,75,000/-. According to the 2[nd] respondent, the aforesaid demand was made by the petitioners after manipulating the signed cheque which she had handed over to the petitioners while availing the loan taken in the year, 2015. It was also alleged that during the month of January, 2013, the 1[st] accused along with an identifiable person came to the house and demanded money and threatened them. They have demanded an amount of Rs.5 lakhs from her husband as well. Consequently, an amount of Rs.2.5 lakhs was paid on February,2013 on behalf of her husband and the balance amount was also paid by her husband and the loan was discharged. On 27.9.2014, they have received a summons from the Judicial First Class Magistrate Court, Ottappalam in connection with the proceedings initiated by the 2[nd] petitioner under the provisions of Section 138 of the Negotiable Instruments Act. Thereafter, on 14.2.2015, a CRL.MC No.6733 of 2016 5 complaint was submitted by the 2[nd] respondent before the police and based on the same, AnnexureB First Information Report was registered and investigation started. 3. Even though, the petitioners submitted Crl.M.C.No.5396 challenging the F.I.R., this Court permitted the investigation to go on and the petitioners were directed to surrender before the learned Magistrate and seek bail. After completing the investigation as aforesaid, the Police submitted Annexure-F charge sheet for the offences under Sections 420,506(i) r/w. Section 34 of the Indian Penal Code and also under Sections 13 and 17 of the Kerala Money Lenders Act. 4. The petitioners contended that Annexure-F final report is an abuse of process of law and the same was submitted on the basis of a complaint raised by the 2[nd] respondent with an intention to escape from the legal proceedings initiated by the petitioners before the Judicial First Class Magistrate Court-1, Ottappalam in S.T.No.1/2014 CRL.MC No.6733 of 2016 6 under Section 138 of the Negotiable Instruments Act. 5. Heard the learned counsel for the petitioners, the learned Public Prosecutor for the 1[st] respondent and the learned counsel appearing for the 2[nd] respondent. 6. The learned counsel for the petitioners strenuously contends that the submission of complaint which resulted in the registration of Annexure-F final report is without any bonafides and only intended to defeat the proceedings initiated against the 2[nd] respondent. As regards to the allegation under Section 420 IPC, it is contended by the learned counsel for the petitioners that, going by Annexure-A statement made by the 2[nd] respondent, no offence is made out. Similarly, it was also pointed out that, even though there were allegations of threatening the 2[nd] respondent by the petitioners, the aforesaid allegation is very vague. Even according to the 2[nd] respondent, the incident of threatening was CRL.MC No.6733 of 2016 7 occurred in January, 2013 but despite the same, the complaint was submitted only on 14.2.2015 which is after the expiry of two years. It was also pointed out that the 2[nd] petitioner had issued a lawyer notice to the 2[nd] respondent on 30.11.2013 demanding an amount of Rs.9,75,000/- on the basis of the cheque issued by the 2[nd] respondent. However, the complaint which is the subject matter of the present proceedings was submitted only after 13 months. As regard to the amounts claimed to have been repaid by the 2[nd] respondent as averred in Annexure-A statement, there are absolutely no documents produced to substantiate the same. In such circumstances, it was contended that, the aforesaid petition was made with mala fide intention and the police had filed a charge sheet as evidenced by Annexure-F without conducting any proper investigation. In such circumstances, the invocation of powers of this Court under Section 482 Cr.PC was sought for. CRL.MC No.6733 of 2016 8 7. As regard to the offences alleged under the provisions of the Kerala Money Lenders Act, it was contended that, the same is also not attracted. Since it is mentioned in the charge sheet itself that, the accused was having licence under Money Lenders Act, the offence under section 17 of the Money Lenders Act would not be attracted. With regard to the allegation of Section 13 of the Act which deals with the penalty for molestation of the debtor, it was contended that, in view of the vagueness in the allegations and also on account of the delay, no prima facie case is made out. 8. Per contra, the learned counsel for the 2[nd] respondent would contend that the averments in Annexure-A statement of the 2[nd] respondent attracts the offences alleged against the petitioners. Merely because of the reason that a proceeding under Section 138 of the Negotiable Instruments Act has been initiated against the 2[nd] respondent, the present prosecution cannot be treated as mala CRL.MC No.6733 of 2016 9 fide. The learned counsel also relied upon the judgments rendered by the Hon’ble Supreme Court in Sri Suresh Kumar Goyal and Others v. State of Uttar Pradesh and Another [(2019)14 SCC 318] and Moosa v. Sub Inspector of Police [2006(1)KLT 552]. On the basis of the said judgments, it is contended that, it is not proper to invoke the powers of this Court under Section 482 of Cr.PC at this juncture as the same would cause serious prejudice to the prosecution and they will be prevented from establishing the offences alleged against the petitioners by adducing evidence. 9. The basic contention of the learned counsel for the petitioners is that the complaint based on which Annexure-F final report filed was without any bona fides and it was intended to interfere with the on-going proceedings in S.T.No.1/2014 before the Judicial First Class Magistrate Court-1, Ottappalam under Section 138 of the Negotiable Instruments Act. While considering the sustainability of this contention, CRL.MC No.6733 of 2016 10 it is to be noted that even as per the averments contained in Annexure-A the alleged threat was made during the month of January, 2013. A careful scrutiny of the contents of the aforesaid statement would reveal that the nature of allegation is very vague. It is mentioned therein that, the loan of Rs.1 lakh which the 2[nd] respondent claimed to have been availed in the year, 2006 for construction of the house from the 1[st] petitioner, was repaid immediately when she had availed a housing loan. It is also contended that, despite the repayment of the entire loan, the documents were not returned back by the petitioners. Thus even according to the 2[nd] respondent, the repayment of the loan which she had taken in the year, 2006 was made after two months of availing the same, but the petitioners have not returned the documents submitted a security for the said transaction. 10. In this regard it is to be noted that, despite the above, no complaint with respect to CRL.MC No.6733 of 2016 11 the same is seen to have filed by the 2[nd] respondent before any authorities. Even though, 1[st] petitioner is alleged to have threatened the 2[nd] respondent during the month of January, 2013, no complaint either with regard to the threat or with regard to the fact of non return of documents were submitted before any of the authorities. Later, on 30.11.2013, even after receipt of legal notice issued by the 2[nd] petitioner demanding an amount of Rs.9,75,000/-, no complaint was submitted in respect of the same. Thereafter, the complaint was submitted only on 14.2.2015 ie. after two years of the alleged threat and after 8 years of the so-called repayment of the loan of Rs.1 lakh. In Annexure-A statement, there is absolutely no explanation for such an enormous delay. In Biju Mathew v. State of Kerala & Others [2020(2)KLT 79] , this Court observed as follows: “4. It is by now too well settled by a series of the rulings of the Apex Court in various decisions as in Thulia Kali v. State of Tamil Nadu, 1972 KHC 592 : AIR 1973 SC 501 : 1972 (3) SCC 393 : 1972 SCC (Cri) 543 : 1972 (3) SCR 622 : 1972 CriLJ 1296 : 1974 (1) MLJ 32, State of Andhra Pradesh v. M. Madhusudhan Rao, 2008 KHC CRL.MC No.6733 of 2016 12 6891 : 2008 (15) SCC 582 : 2008 (14) SCALE 118 etc., that delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on its veracity. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc.” 11. Thus, it is well settled position that the delay in lodging the FIR, often results in embellishment and exaggeration. It exposes the danger of introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, and thus casting a very serious doubt on its veracity. In such circumstances, the explanation for such huge delay was insisted upon and in the absence of which, the case can be quashed. It is true that, there are several judgments which states that merely because of the delay in lodging the FIR, the power of this Court under Section 482 of Cr.PC cannot be invoked. The CRL.MC No.6733 of 2016 13 learned counsel for the 2[nd] respondent relied upon the judgment in Moosa’s case (supra) and brought my attention the observation that unless there are materials of inequitable nature which can be translated into the legal evidence in the course of trial, the power of this Court under Section 482 Cr.PC cannot be invoked. Similarly, he also relied upon the judgment reported in Sri Suresh Kumar Goyal’s case (supra) wherein it was held that the proceedings under Section 482 Cr.PC is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/complainant against the accused. The relevant paragraphs of the said judgment are as follows: "28. The High Court, in exercise of its jurisdiction under S.482 CrPC must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution / complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution / complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution / complainant, without allowing the prosecution or the complainant to adduce evidence to CRL.MC No.6733 of 2016 14 substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution / complainant has leveled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. The issue being examined in the instant case is the jurisdiction of the High Court under S.482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under S.482 CrPC, at the stages referred to hereinabove, would have far - reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under S.482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his / their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges leveled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/ complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under S.482 CrPC to quash such criminal proceedings, for that would CRL.MC No.6733 of 2016 15 prevent abuse of process of the court, and secure the ends of justice.” 12. It is true that the invocation of power under Section 482 Cr.PC is to be sparingly used in rare cases. Therefore, the exercise that should be performed before invoking the said jurisdiction, is to look carefully all the aspects of the case and to verify whether the case at hand is fit for invoking the powers under the said provision. Even while considering the contentions raised in this case by applying the level of caution expressed by the Honourable Supreme Court, I am of the view that their exists certain glaring aspects which cannot be ignored. As mentioned above, there is substantial delay on the part of the 2[nd] respondent in responding to the alleged misultilization of the documents allegedly entrusted by her with the petitioners in the year, 2006. Even after placing of the alleged threat by the 1[st] respondent during the month of January, 2013, the 2[nd] respondent did not raise any complaint against the same. Even CRL.MC No.6733 of 2016 16 after receipt of notice which culminated in S.T.No.1/2014, she waited for another 13 months for submitting the complaint. The contents of Annexure-F charge sheet do not indicate any date or other specific details as to the entrustment of the documents and the repayment of the loan alleged to have been availed by the 2[nd] respondent in the year, 2006. No documents are also seen produced to substantiate, either availing of the loan in the year 2006 or repayment thereof. The aforesaid aspects coupled with long delay occurred in the initiation of the proceedings, which is much after the petitioners have initiated proceedings under Section 138 of the Negotiable Instruments Act, shatters the case advanced by the prosecution. From the aforesaid materials, the irresistible conclusion possible is that, the entire proceedings of submission of the complaint, filing of Annexure-F charge sheet and all further proceedings are clear abuse of process of law. The chances for successful prosecution based on CRL.MC No.6733 of 2016 17 Annexure-F charge sheet is very bleak particularly because of the fact that it lacks any specific material particulars in support of the allegations and the offences alleged. 13. In such circumstances, I am of the view that, the petitioners are entitled to succeed. Accordingly, Annexure-F final report and all further proceedings in C.C.No.1339/2015 on the file of the Judicial First Class Magistrate Court, Ottappalam are hereby quashed. The above Crl.M.C. is allowed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.6733 of 2016 18 ## APPENDIX OF CRL.MC 6733/2016 |PETITIONERS’|ANNEXURES| |---|---| |ANNEXURE A|CERTIFIED COPY OF THE STATEMENT OF 2ND| ||RESPONDENT RECORDED BY THE S.I OF POLICE,| ||SREEKRISHNAPURAM POLICE STATION ON| ||14.2.2015.| |ANNEXURE B|TRUE COPY OF THE FIRST INFORMATION REPORT| ||AND PRODUCED BEFORE THE JUDICIAL FIRST| ||CLASS MAGISTRATE COURT, OTTAPALAM.| |ANNEXURE C|TRUE COPY OF THE COMPLAINT AS| ||S.T.NO.1/2014 BEFORE THE JUDICIAL FIRST| ||CLASS MAGISTRATE-1, OTTAPALAM.| |ANNEXURE D|TRUE COPY OF THE NOTICE DATED 30.7.2015| ||ISSUED BY S.I. OF POLICE SREEKRISHNAPURAM| ||POLICE STATION TO THE PETITIONERS.| |ANNEXURE E|TRUE COPY OF THE ORDER DATED 17.8.2015 IN| ||CRL.M.A NO.8033/2015 IN| ||CRL.M.C.NO.5396/2015 PASSED BY THIS| ||HON'BLE COURT.| |ANNEXURE F|CERTIFIED COPY OF THE FINAL REPORT AND| ||TAKEN ON FILE OF THE JUDICIAL FIRST CLASS| ||MAGISTRATE, OTTAPALAM AS C.C.NO.1339/2015.| |ANNEXURE G|TRUE COPY OF THE SUMMONS ISSUED TO THE| ||PETITIONERS.| //TRUE COPY// Sd/- PS to JUDGE