Vandana Mary Jacob & George Abraham v. State of Kerala & Mangat George Raveen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 18[TH] DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943** **CRL.MC NO. 4767 OF 2021** **CC 131/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE** ## **(E&O),ERNAKULAM** ## **PETITIONER/ACCUSED:** - **1 VANDANA MARY JACOB AGED 30 YEARS D/O. JACOB CHERIAN, STRUCTURAL ENGINEER K.E.O., FTZ. FUTURE ZONE, NO.6, FLAMINGO COMPLEX, P. O. BOX 3679, KUWAIT.** - **2 GEORGE ABRAHAM @ KIRAN AGED 39 YEARS,MARKAZ INVESTMENT BANK, UNIVERSAL TOWER, AHMED AL JABER ST. SHARQ, 23444, KUWAIT.** **BY ADVS.P.SANTHALINGAM (SR.) SINDHU SANTHALINGAM JESSY S.SALIM** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT :** - **1 STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 MANGAT GEORGE RAVEEN S/O. GEORGE GEORGE 8.B. HOMESTEAD APARTMENTS, CHACKOLA COLONY PERUMANNOOR, KOCHI - 682015, ERNAKULAM DISTRICT. BY ADV MANU ROY** ## **OTHER PRESENT:** **SR.PP - SRI. HRITHWIK C.S.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON 18.02.2022 PASSED THE FOLLOWING:** Crl.M.C.4767/21 2 ## **O R D E R** Petitioners are the accused in C.C.131 of 2020 on the file of the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam, which arose from the final report in crime 464/2018 of Ernakulam Town South police station. That crime was registered on a complaint preferred by the 2[nd] respondent, who is the husband of the 1[st] petitioner. The marriage between the 1[st] petitioner and the 2[nd] respondent was solemnised on 20.08.2016. They have a girl child born on 24.06.2017. Both of them were residing and working in Kuwait. At that time matrimonial discord developed between them and it is stated that the 2[nd] respondent, the father of the child, gave communication to the authorities abroad cancelling residence permit of the five month's old child. Then he left Kuwait. According to the 2[nd] respondent, the marital discord developed due to illegal and adulterous relationship between the accused persons, ie. the 1[st] and 2[nd] petitioners. The 2[nd] petitioner is the brother-inlaw of the 1[st] petitioner and thus he cancelled the residence permit of the child. According to the 2[nd] respondent, out of that animosity the accused persons who are the petitioners, created his false e-mail ID as Crl.M.C.4767/21 3 mangattugeorge0@gmail.com and sent him an e-mail to his actual e-mail address as raveen737@gmail.com, threatening him for cancelling the residence permit of Aarika, the child. According to him, it is a fake e-mail address which was forged by the accused persons which was sent to his actual e-mail address. So he alleged offence under Sections 465, 468, 506 and 507 read with 34 of the IPC. According to him, he had filed complaint before the Station House Officer, Ernakulam Town South police station, who did not take action and that was how he preferred Annexure-A4 complaint before Court which was forwarded to the police for registering the crime and investigation. Thus crime 464/2018 was registered and after investigation charge sheet was laid before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam alleging offence under Sections 506, 507 read with Section 34 of the IPC. The petitioners who are the accused have moved this Court under Section 482 of the Cr.P.C. for quashing the proceedings. According to them, the allegations against them are false. 2. According to the petitioners, during the period when 1[st] petitioner and the 2[nd] respondent were residing together in Kuwait, the relationship was not at all smooth and there were personal disputes which Crl.M.C.4767/21 4 used to end up in fights. On 15.11.2017 physical violence was committed by the 2[nd] respondent and she had to attend hospital for treatment and the treatment records are also produced along with the M.C. Then the 2[nd] respondent cancelled the residence visa of the child. When she apprised the Kuwait Police Chief of what had happened, the Police Chief asked the 2[nd] respondent to stamp the residence permit of the child. But without complying the same, on the following day itself the 2[nd] respondent left Kuwait without even taking leave or informing his superiors and thus his services were terminated from the company where he was working. It was to wreak vengeance on them that Annexure-A4 complaint was preferred which led to the filing of the final report. According to the 1[st] petitioner, she had approached the Family Court, Kuwait and the Court has ordered the 2[nd] respondent to pay an amount of 450 Kuwait Dinars per month to her. The learned Magistrate went wrong in forwarding the complaint without conducting enquiry under Section 202 of the Cr.P.C. In fact, the learned Magistrate was not entitled to forward the complaint to the police. Moreover, cognizance was taken without proper materials placed before Court. The petitioners also relied on the decisions reported in **Abhijit** ## **Pawar v. Hemanth Madhukar Nimbalkar and another [(2017) 3 SCC** Crl.M.C.4767/21 5 ## **528], Vijay Dhanuka and others v. Naima Mamtaj and others [(2014) SCC 638]** and **M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate** **[(1998) 5 SCC 749].** So the entire proceedings are sought to be quashed. 3. I heard the learned counsel for the petitioners, the learned counsel for the 2[nd] respondent and also the learned Senior Public Prosecutor. 4. According to the learned counsel for the petitioners, the alleged e-mail, using which the petitioners had threatened the 2[nd] respondent, is not forthcoming; that means, primary or secondary evidence is not available; it is a fictitious e-mail; petitioners are not aware of it; it is not known from whom it was sent or other material documents are not forthcoming. Electronic evidence or certification under Section 65 of the Information Technology are also not forthcoming. This is a purely frivolous complaint intended to trouble the petitioners and therefore entire proceedings are sought to be quashed. 5. On the other hand, according to the learned counsel for the 2[nd] respondent, there are materials to show that a new e-mail address was created by forging documents and sent threatening message to the e-mail address of the 2[nd] respondent so that the offence is attracted. The learned Crl.M.C.4767/21 6 counsel strongly defended the criminal proceedings initiated against the petitioners. 6. As indicated earlier, besides offence under Sections 506 and 507 read with 34 of the IPC, the 2[nd] respondent had alleged that the petitioners had committed offences under Sections 465 and 468 also. But during investigation, offences under Sections 465 and 468 were deleted and in the 'yadasthu' of the charge sheet it is stated that the said forged e- mail is not with them and the defacto complainant was asked to produce and since he did not produce, offence under Sections 465 and 468 were deleted from the sections of law. 7. It is true that in Anenxure-A4 complaint it is shown that copy of the e-mail dated 22.01.2018 was also attached. But that is not forthcoming, which is evident from the final report. Annexure-A8 order of the Additional Chief Judicial Magistrate also indicates that such a document was not available in Court and thus the police was directed to produce the same; the police also could not produce the same so that its copy could not be supplied to the petitioners on request. 8. It is evident that the marital tie between the 1[st] petitioner and the 2[nd] respondent was a short living one. They were married on Crl.M.C.4767/21 7 20.08.2016. Though a child was born on 26.04.2017, from the previous statements of witnesses it is very evident that the relationship was not at all cordial. Both of them were employed in Kuwait and at last they had to part company. Before that, the 2[nd] respondent had cancelled the residence permit of the child. But the 1[st] petitioner approached the Kuwait Police Chief who had asked the 2[nd] respondent to stamp the residentce permit of the child, which he refused and abruptly left Kuwait even abandoning the job, which is evident from the Annexure-A3 document produced by the petitioners. 9. Whatever it may be, now the offence alleged against the petitioners are under Sections 506 and 507 of the IPC. In order to attract offence under Sections 506 and 507 of the IPC, there must be criminal intimidation as defined under Section 503 of the IPC, which reads thus: “503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.” Crl.M.C.4767/21 8 In order to attract offence under Section 506 of the IPC, the following ingredients should be made out: - (1) The accused threatened someone with injury to his person, reputation or property or the person, reputation and or property of another in whom the former was interested; - (2) The accused did so with intent to cause alarm to the victim of offence; - (3) The accused did so to cause that person to perform any act which he was not legally bound to do; 10. Apart from the above ingredients, in order to attract Section 507 IPC the prosecution also should prove that the accused made the threat by anonymous communication sent to the victim of offence. As noticed earlier, the said communication allegedly sent by the petitioners creating false e-mail address of the petitioner is not forthcoming. It has not been attached to the private complaint and it is evident from Annexure-A8 that it did not reach the Court. From the charge sheet also it is evident that the police had to delete Sections 465 and 468 of the IPC owing to the defacto complainant not producing the said e-mail. 11. In order to attract the criminal intimidation alleged by the prosecution, that e-mail is the most vital piece of evidence. It has not yet Crl.M.C.4767/21 9 seen the light of the day. It is the primary evidence. Even a copy of it is not available. 12. Secondly, even the defacto complainant is not sure as to who had created such an e-mail. Without seeing even the copy of the same it is not known how the prosecution could form a prima facie opinion about the commission of a crime under Section 506 or 507 of the IPC. This aspect remains incomprehensible. Unless and until the said e-mail is forthcoming, it cannot be said that the threatening was done causing injury to the person, reputation or property of the defacto complainant 2[nd] respondent. Therefore, failure to produce such a document is highly fatal to the prosecution. 13. I have also carefully gone through the previous statements of witnesses. These witnesses including the parents of the 2[nd] respondent do not have direct knowledge of the allegations. The defacto complainant had moved the trial court only on the assumption that it was sent by the petitioners. It is evident that the petitioners and the 2[nd] respondent are now inimically disposed. It seems that now they have moved the Family Court for divorce also. The allegations on the face of the materials seem to be preposterous and far fetched. There is absolutely no material to say that Crl.M.C.4767/21 10 the petitioners had threatened the 2[nd] respondent with injury to his person, reputation or property or person, reputation or property of another to whom he is interested. It is the most vital aspect of the offences alleged against them. It is also not known as to how it could be said that the petitioners had acted in furtherance of their common intention justifying to invoke Section 34 of the IPC. In the circumstances, this is a fit case for invoking jurisdiction under Section 482 of the Cr.P.C. for quashing the proceedings. In the result, the Crl.M.C. is allowed and the entire proceedings initiated against the petitioners pursuant to registration of crime No.464/2018 of Ernakulam Town South police station, now pending as C.C.131 of 2020 before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam are quashed and the petitioners shall stand exonerated. The Crl.M.C. is allowed as above. ## **Sd/-** **K.HARIPAL JUDGE** okb/17.2.22 //True copy// P.S. to Judge Crl.M.C.4767/21 11 ## **APPENDIX OF CRL.MC 4767/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF THE INJURY REPORT DATED| ||15.11.2017 FROM MUBARAK AL KABEER HOSPITAL,| ||KUWAIT.| |Annexure A2|TRUE COPY OF REPORT CONFIRMING FRACTURE,| ||DATED 19.11.2017, FROM AL RAZI HOSPITAL,| ||KUWAIT.| |Annexure A3|TRUE COPY OF THE LETTER ISSUED BY 'ARABI| ||ENERTECH.KSC' DATED 29.01.2018 CONFIRMING| ||ABSCONDING OF DE FACTO COMPLAINANT FROM HIS| ||COMPANY IN KUWAIT.| |Annexure A4|TRUE COPY OF THE COMPLAINT, DATED 22.02.2018| ||SUBMITTED TO THE ADDITIONAL CHIEF JURIDICAL| ||MAGISTRATE COURT (E.O.), ERNAKULAM BY THE DE| ||FACTO COMPLAINANT.| |Annexure A5|TRUE COPY OF FIR NO.464/2018 DATED| ||14.03.2018, REGISTERED BY THE ERNAKULAM TOWN| ||SOUTH POLICE STATION.| |Annexure A6|THE CERTIFIED COY OF THE FINAL REPORT/CHARGE| ||DATED 11.06.2019 SUBMITTED IN C.C.NO.131/2020| ||BEFORE THE ADDITIONAL CHIEF JUDICIAL| ||MAGISTRATE COURT (E.O.), ERNAKULAM.| |Annexure A7|THE TRANSLATED TRUE COPY OF THE JUDGMENT| ||DATED 23.10.2019 OF THE SUPREME COURT OF| ||KUWAIT.|