Sujesh Krishna v. Sudheesh (de facto complainant) and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946** **CRL.MC NO. 5300 OF 2023** **CRIME NO.1057/2019 OF Thamarassery Police Station,** ## **Kozhikode** **AGAINST CC NO.493 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST** ## **CLASS -I,THAMARASSERY** ## **PETITIONER/2nd ACCUSED:** **SUJESH KRISHNA AGED 35 YEARS, S/O. V.P.KUTTIKRISHNAN SREEPADAM HOUSE, NADUPUTHALATH, KAARADI, THAMARASSERY P. O, KOZHIKODE, PIN - 673573** **BY ADVS. SRI.PRABHU K.N. SRI.REBIN VINCENT GRALAN SRI.DINESH G WARRIER** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **1 SUDHEESH AGED 35 YEARS, S/O SASI ILLIKKAL HOUSE, PULPALLY DESOM, PULPALLY VILLAGE, PALAKOLLI P.O., SULTHAN BATHERY TALUK, WAYANAD, PIN - 673579 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADVS. SRI.LUIZ GODWIN D COUTH SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.BIJO FRANCIS** Crl.M.C. No.5300/23 ## **-:2:-** ## **SMT. SREEJA V., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.05.2024, THE COURT ON 07.06.2024 PASSED THE FOLLOWING:** Crl.M.C. No.5300/23 **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C. No.5300 of 2023** ## **---------------------------------** Dated this the 7[th] day of June, 2024 ## **ORDER** Petitioner challenges the proceedings in C.C. No.493 of 2020 on the files of Judicial First Class Magistrate's Court-I, Thamarassery. The said proceeding has been initiated pursuant to Annexure A3 final report filed in Crime No.1057 of 2019 of Thamarassery Police Station. Petitioner is the second accused in the above case. 2. According to the prosecution, the defacto complainant had purchased a lorry bearing registration No.KL-73-A-5253 for Rs.12,10.600/- after availing a loan of Rs. 9,07,000/- from a financial institution called HDB Finance. Subsequently the defacto complainant entrusted the vehicle with the second accused on a monthly lease of Rs.15,000/- with the understanding that the second accused will clear the loan using the income from plying the vehicle and thereafter return the vehicle. A further amount of Rs.3,00,000/was also given to the second accused to construct the vehicle body. While so, the second accused handed over the vehicle to the first Crl.M.C. No.5300/23 **-:4:-** accused who is his brother and informed the defacto complainant that the loan was cleared by 2019 and the defacto compliant handed over an application for obtaining NOC from the financier. However, contrary to the understanding the accused failed to return the vehicle after clearing the loan and later on verification it was realized that the accused had dishonestly transferred the vehicle to their name. After obtaining records under the RTI Act, it was realized that the accused had submitted applications to the RTO offices with forged signatures and the original documents of the vehicle were misused after creating false documents thereby committing the offences under sections 406, 420, 465, 468 and 471 read with section 34 of the Indian Penal Code, 1860. 3. Sri. Prabhu K.N., the learned counsel for the petitioner contended that initially, the defacto complainant had filed a complaint before the Magistrate’s Court without a supporting affidavit as contemplated in the decision in **Priyanka Srivastava and Another v. State of U.P. and Others** [(2015) 6 SCC 287] and hence the reference under section 156(3) of Cr.P.C and the consequent registration of FIR along with the final report are all without any legal basis. Learned counsel further asserted that the second accused had Crl.M.C. No.5300/23 **-:5:-** been residing outside India from 2016 onwards and therefore the alleged occurrence being in 2019, he has been falsely implicated in the crime. It was also submitted that if at all any crime has been committed, it required the sanction of the Central Government under section 188 Cr.P.C and hence cognizance taken without such sanction is a non-est. Learned counsel also argued that on a perusal of the final report, there is no indication that the second accused had any intention to deceive from the very beginning and the said ingredient being one of the essential ingredients for attracting the offence under section 420, the proceedings are liable to be quashed. 4. Sri. Luiz Godwin D. Couth, the learned counsel for the first respondent on the other hand contended that though initially an affidavit was not filed, later an affidavit was filed and the learned Magistrate referred the complaint to the police under section 156(3) Cr.P.C only after satisfying himself as to the existence of the affidavit. Learned counsel further submitted that the contentions raised by the petitioner are all factual disputes which cannot be considered in a petition under section 482 and also that the plea of alibi now raised cannot be decided in this proceeding. 5. I have heard the learned Public Prosecutor also. Crl.M.C. No.5300/23 **-:6:-** 6. The need for a supporting affidavit in a private complaint has already been considered in various cases including **Priyanka Srivastava and Another v. State of U.P. and Others** (2015 KHC 4242) [(2015) 6 SCC 287] and in **Babu Venkatesh and Others v. State of Karnataka and Another** [(2022) 5 SCC 639]. Since the counsel for the respondent asserted that an affidavit was filed affirming the allegations in the complaint, this Court directed the Registry to ascertain from the trial court whether any affidavit was submitted. After verifying the records it has been informed that the complaint was filed on 17.10.2019 and on verification, the Magistrate noticed that an affidavit had not been filed. Later, before the next posting date on 23.10.2019, an affidavit was filed. The learned Magistrate referred the complaint to the Station House Officer under section 156(3) Cr.P.C only after satisfying himself about the existence of the affidavit filed by the complainant. In view of the above, information supplied by the Registry of this Court it is evident that the contentions advanced by the learned counsel for the petitioner regarding the absence of an affidavit along with the complaint is not legally tenable. 7. Further, the private complaint was referred for investigation, Crl.M.C. No.5300/23 **-:7:-** and after the investigation, the police also filed a final report. The final report, which arrays the petitioner and another person as accused, indicates that the complainant's allegations were, after investigation, found to be justified. Thus the contention based on the the decision in **Priyanka Srivastava’s** case (supra) is not legally valid **.** 8. The prosecution allegations stem from an alleged oral understanding between the parties regarding the return of all documents after clearing the loan on the vehicle purchased by the defacto complainant. The complainant alleged that his signature was forged to create a transfer of title of the vehicle to the first accused and that both accused 1 and 2 had acted in furtherance of their common intention to cheat the defacto complainant. The police have, after investigation, laid the final report finding forgery of the signature of the defacto complainant and also that the accused had acted in furtherance of their common intention. Though the learned counsel for the petitioner has produced a photocopy of the passport to contend that he was not in station during the relevant period to even attribute his involvement in the alleged crime, I am of the view that those circumstances fall within the realm of disputed facts. It is a Crl.M.C. No.5300/23 **-:8:-** settled principle that while exercising jurisdiction under section 482 Cr.P.C High Court ought not to delve into disputed facts to arrive at a conclusion as the same are matters that need to be established during trial. 9. Even otherwise the plea of alibi asserted by the petitioner is a facet to be determined during the trial as it is a matter of evidence. The plea of alibi has to be proved with absolute certainty so as to wholly exclude the possibility of the presence of the accused at the relevant time. This Court has considered the question regarding the plea of alibi taken by the defence in a prosecution as reported in **Khalid v. State of Kerala** 2024 (2) KHC 441 and held that the dates of travel mentioned in passports are not liable to be accepted for quashing the final report invoking the inherent jurisdiction. 10. The contention regarding the requirement of sanction under section 188 of the Cr.P.C is also according to me without any merit. The requirement of a sanction arises only when the offence in its entirety is committed outside the country. In the instant case, there is no allegation of commission of any offence outside the country. The offence is alleged to have been committed entirely in India. Even otherwise, if a portion of the offence has been committed in India, the Crl.M.C. No.5300/23 **-:9:-** requirement of such a sanction will not arise as observed by the Supreme Court in the decision in **Sartaj Khan v. State of Uttarakhand** (2023) Cr.LJ 411. In view of the above, the contentions raised by the petitioner in this proceeding under section 482 Cr.P.C have no merit and the Crl.M.C is dismissed. It is clarified that the observations made in this order are purely for deciding this petition under section 482 and the same shall have no bearing on the merits of the matter during trial. Sd/- **BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.5300/23 ## **-:10:-** ## **APPENDIX** |**PETITIONER'S/S'**|**ANNEXURES**| |---|---| |**Annexure A1**|**CERTIFIED COPY OF CMP NO 4241/2019**| ||**PREFERRED BY THE 1STRESPONDENT /DEFACTO**| ||**COMPLAINANT BEFORE THE JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT 1 THAMARASSERY**| |**Annexure A2**|**CERTIFIED COPY OF FIR IN CRIME**| ||**NO.1057/2019 OF THAMARASSERY POLICE**| ||**STATION, KOZHIKODE DISTRICT DATED**| ||**25.10.2019**| |**Annexure A3**|**CERTIFIED COPY OF THE FINAL REPORT IN**| ||**C.C.NO.493/2020 ON THE FILE OF JUDICIAL**| ||**1ST**<br>**CLASS**<br>**MAGISTRATE**<br>**COURT**<br>**1**| ||**THAMARASSERY ARISING OUT OF CRIME**| ||**NO.1057/2019 OF THAMARASSERY POLICE**| ||**STATION DATED 30.03.2020**| |**Annexure A4**|**TRUE COPY OF THE PASSPORT OF THE**| ||**PETITIONER/2ND ACCUSED**|