Vijayagopal v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **Crl.MC.No.4505 OF 2016** **CRRP 48/2014 DATED 31-05-2016 OF I ADDITIONAL SESSIONS JUDGE, PALAKKAD** **CC 70/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD** **CRIME NO.350/2005 OF CBCID, PALAKKAD** **PETITIONER/2ND ACCUSED:** **VIJAYAGOPAL AGED 53 YEARS S/O.GOPALAKRISHNAN, PUTHENTHODIYIL HOUSE, PANAYOOR P.O., VANIYAKULAM PALAKKAD.** **BY ADVS. SRI.VARGHESE C.KURIAKOSE SMT.SEENU SADIQUE** **RESPONDENTS/STATE INVESTIGATING OFFICER, REVENUE AUTHORITIES & 1ST ACCUSED:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2 DEPUTY SUPERINTENDENT OF POLICE CBCID, OCW III, PALAKKAD 673 001.** **3 THE DISTRICT COLLECTOR PALAKKAD CIVIL STATION, PALAKKAD 673 001.** ## **Crl.M.C.No.4505 of 2016** ## **:-2-:** **4 THE TAHSILDAR, REVENUE RECOVERY CIVIL STATION, PALAKKAD 673 001.** - **5 THE VILLAGE OFFICER YAKKARA VILLAGE, YAKKARA, PALAKKAD 673 301.** - **6 KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, KESTON ROAD, KOWDIAR, TRIVANDRUM-695 536 REP. BY ITS COMPANY SECRETARY. BY ADV.SRI.P.U.SHAILAJAN, SC, KSIDC BY ADV.SRI. BINEESH. E.C. (P.P)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-06-2020, THE COURT ON 02-07-2020 PASSED THE FOLLOWING:** **Crl.M.C.No.4505 of 2016** ## **:-3-:** ## **Dated this the 2[nd] day of July, 2020** ## **O R D E R** Petitioner is the second accused in C.C.No.70/2011 on the files of CJM Court, Palakkad, who was prosecuted by Deputy Superintendent of Police, CBCID, Palakkad, for offences punishable under Sections 457, 380, 406 read with Section 34 IPC. 2. He sought to be discharged of the offences before CJM Court, Palakkad, which was refused by an order dated 6.11.2014. Though the said order was challenged in Crl.R.P.No.48/2014, it was not interfered with. Thus challenging the concurrent orders passed dismissing C.M.P.No.5012/2012 filed under Section 239 of the Cr.P.C. for discharge, this Crl.M.C. is filed for their quashment invoking Section 482 of Cr.P.C. ## **Crl.M.C.No.4505 of 2016** ## **:-4-:** 3. The prosecution case is that 1[st] accused is the proprietor of Neelima Palakkad Oil Mill Private Ltd. situated in Yakkara Village, Palakkad. He availed huge amount of loan from KSIDC, the 6[th] respondent and when he defaulted repayment, the plants and machineries owned by him were attached by Village Officer, Yakkara, on 26.5.2003 invoking provisions under the Revenue Recovery Act. It is stated that the attached properties were entrusted with the second accused on the same day itself. The allegation against the petitioner, who is the second respondent, is that while the order of attachment was in force, he colluding with the first accused trespassed into the premises where the properties were kept under lock and committed theft of the articles worth Rs.10 lakhs and committed offences in question. 4. The contentions of the petitioner urged in ## **Crl.M.C.No.4505 of 2016** ## **:-5-:** support of quashment of the concurrent orders passed by both courts below, are as follows; (i) He has not signed the kaichit nor was he entrusted with any properties belonging to the oil mill. (ii) Even if execution of kaichit is assumed also, charge under Section 457 IPC would not sustain in as much as being a purported custodian of the articles, he had every right of access to the premises where they were allegedly kept. (iii) He did not commit theft of the properties nor did he collude with the first accused in allegedly removing or shifting the articles out of the premises. There is absolutely no material on record to connect him with the alleged act of shifting of the materials from the legal custody of the ## **Crl.M.C.No.4505 of 2016** ## **:-6-:** Revenue Officer. (iv) He has not committed any act of criminal breach of trust, since the attached properties were practically in the physical control and possession of the first accused and it was monitored by his security staff also. Petitioner had no access to the premises where the properties were kept under attachment though he had a legal right of access, though under law he had right of entry. Since the properties were in the immediate possession of the first accused, any secret arrangement for removal of articles if made, could not have been taken easy notice of by the petitioner and therefore itself, prevention of alleged theft was practically not possible. The materials on record do not establish that he had knowledge of the alleged shifting of ## **Crl.M.C.No.4505 of 2016** **:-7-:** generator from the premises or he facilitated such shifting. 5. I have heard the learned counsel for the petitioner, the learned counsel for the 6[th] respondent KSIDC and the learned Public Prosecutor. 6. It was contended by the learned Public Prosecutor that this proceeding under Section 482 of Cr.PC. is not maintainable challenging the orders of both the courts below since on a previous occasion, a similar proceeding filed, challenging the final report in C.C.No.70/2011 was dismissed as withdrawn with liberty reserved to the petitioner to seek discharge of the offences by moving the trial Magistrate under Section 239 of Cr.P.C. In my view, this contention cannot sustain in as much as Section 482 gives ample powers to High Court to interfere with orders passed refusing discharge, provided, any illegality or impropriety in the ## **Crl.M.C.No.4505 of 2016** ## **:-8-:** decision could be established before this Court. 7. The learned counsel for the 6[th] respondent relying on a decision reported in **Kunhayu and ors.** **v. State of Kerala (1965 KHC 21)** argued that misappropriation of goods under attachment will amount to an offence of theft punishable under Section 380 IPC, if allegation is established against the custodian of goods and thus contended that accusation against the petitioner of offence under Section 380 IPC is tenable. 8. The disputed question as to whether the petitioner signed the kaichit is a matter of trial and it cannot be probed into in this proceeding exercising inherent power of this Court. Nevertheless, even if it is assumed that the petitioner was entrusted with the attached properties also, I do not, for a moment, agree to the prosecution contention that an offence under ## **Crl.M.C.No.4505 of 2016** ## **:-9-:** Section 457 IPC is made out. This is for the main reason that as a custodian, the petitioner had every right of access to the premises and take care of the properties attached and kept therein. When legal right of entry to the premises enures to the petitioner, under any circumstances, no charge under Section 380 IPC could be attributed to him. The final report, therefore, to this extent cannot be legally sustained against the petitioner. 9. As to the accusation under Section 380 IPC, the learned counsel for the petitioner contended that on the alleged date of shifting of generator, the petitioner was not physically present in the premises. Further, there is nothing on record also to disclose that he had knowledge of the removal of generator from the oil mill to any person. Controverting this argument, the learned Public Prosecutor drew my attention to the statement given ## **Crl.M.C.No.4505 of 2016** ## **:-10-:** to Police by the driver of the first accused. CW14, driver, stated that on 25.12.2003 when the generator was removed with the help of the employees of the oil mill and taken by one Saji Mathew who purchased it, the petitioner was also present. If this statement is true, it would certainly incriminate the petitioner. But my attention was drawn by the learned counsel for the petitioner to the statement of Saji Mathew (CW9) and that of Suresh Kumar (CW8) to contend for the position that the statement of CW14 is false and improbable. 10. CW8 is an Electrician, who arranged for the sale of generator to CW9 and unbolted the apparatus with the help of the employees of the first accused. Throughout his statement, though he made reference to many persons present at the time, he did not state that the petitioner was present at ## **Crl.M.C.No.4505 of 2016** ## **:-11-:** the scene. Same is the case with CW9 also. He too did not state that the petitioner was present at the scene when the generator was removed. Therefore, by all means, the statement of CW14, is either interested or false. 11. Going by the materials on record, there is nothing to indicate as to how the petitioner is connected with the establishment of the first accused. On the other hand, the statement given by the Village Officer, Yakkara (CW13), indicates that the properties attached were entrusted with the petitioner's custody since the official had acquaintance with him. The petitioner is an inhabitant of Ottapalam and has no connection with Yakkara Village or the oil mill of the first accused. Annexure A2 report dated 16.2.2011 submitted by the Investigating Officer discloses that the plants and machineries attached by the ## **Crl.M.C.No.4505 of 2016** ## **:-12-:** Village Officer, were left in the physical possession and control of the security staff of the first accused, though kaichit stood executed by the petitioner evidencing entrustment of custody of the attached articles. When this is the true state of affairs, opportunity of the first accused to inter meddle with the attached articles in his own whimsical manner undetected by the petitioner, was quite possible. The petitioner's opportunity to access the premises and take care of the attached properties was practically less, despite that he had legal right of entry. He has no connection with the first accused institution and is hailing from a different taluk also. 12. When all these facts are taken together, the presence of the petitioner at the premises when the alleged shifting of generator took place, cannot be simply assumed and therefore itself, the ## **Crl.M.C.No.4505 of 2016** ## **:-13-:** statement given by CW14, the driver cannot be regarded as truthful. Even otherwise also, charge of theft cannot be said to be made out so long as the properties allegedly sold admittedly belonged to the first accused himself. When the owner himself cannot be indicted for a charge of offence of theft, it escapes one's understanding as to how the petitioner could be prosecuted for the said charge. Therefore, accusation under Section 380 IPC cannot sustain against the petitioner. 13. So far as act of criminal breach of trust is concerned, it becomes an offence only when the trustee misappropriates the properties in his possession with dishonest intention. Looking at the entire materials on record, it is very hard to assume that the petitioner had any dishonest intention even if it is assumed that the properties under attachment were misappropriated by the first ## **Crl.M.C.No.4505 of 2016** **:-14-:** accused. The records do not reveal that the petitioner had any knowledge of sale of generator. It is true that as a custodian, he was bound to account for the possession of properties. But this failure, going by the circumstances on record, is not attributable to dishonest intention on his part. He has not made any wrongful gain nor can he be said to have promoted the first accused to make wrongful gain. It is very likely that without the knowledge of the petitioner, the properties under attachment were meddled with. On the facts presented, I find my way difficult to accept the prosecution case that the petitioner committed an offence of criminal breach of trust punishable under Section 457 IPC. 14. Both the courts below did not meticulously probe into these fundamental facts but passed the impugned orders, which in my opinion, are not legal ## **Crl.M.C.No.4505 of 2016** **:-15-:** and proper. They are liable to be interfered with for ends of justice and to prevent abuse of the process of law. 15. So far as the sixth respondent KSIDC is concerned, it does not appear to have any substantial grievance in the issue, since as indicated in Annexure A6 letter addressed to District Collector, Palakkad, it had received the entire arrears of loan amount and the consequential revenue recovery proceedings were also withdrawn at its request. Further more, the principal offendor, the first accused has passed away during the pendency of this Crl.M.C. leaving the petitioner alone liable to be prosecuted. When the changed circumstances of the case are taken into account, I am of the opinion that there is no good reason to insist the petitioner to undergo the trauma of trial in this crime which was registered as early ## **Crl.M.C.No.4505 of 2016** ## **:-16-:** as in 2012. Taking into account the entirety of facts, the contentions of parties and the developments which came about after the institution of the final report, I am of the opinion that a liberal view of setting aside the impugned orders requires to be taken in this proceeding. Therefore, I hold that Annexures A9 and A10 orders passed by CJM **==> picture [437 x 12] intentionally omitted <==** liable to be quashed. In the result, Crl.M.C. is allowed quashing the impugned Annexure A9 order dated 6.3.2014 in C.M.P.No.5012/2012 in C.C.No.70/2011 and Annexure A10 order dated 31.5.2016 in Crl.R.P.No.48/2014. C.M.P.No.5012/2012 filed by the petitioner in C.C.No.70/2011 will stand allowed accordingly. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ ## **Crl.M.C.No.4505 of 2016** ## **:-17-:** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE PHOTOSTAT COPY OF FIRST INFORMATION REPORT SUBMITTED IN CRIME NO.350/2005 OF PALAKKAD TOWN SOUTH POLICE STATION.** **ANNEXURE A2 TRUE PHOTOSTAT COPY OF REPORT DATED 16/2/2011 SUBMITTED BY THE 2ND RESPONDENT TO THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD IN CRIME NO.350/2005.** - **ANNEXURE A3 TRHE PHOTOSTAT COPY OF THE SUIT AS OS NO.38/2006 ON THE FILES OF SUB COURT, OTTAPPALAM** - **ANNEXURE A4 TRUE PHOTOSTAT COPY OF THE FINAL REPORT/CHARGE SHEET SUBMITTED BY THE 2ND RESPONDENT** **ANNEXURE A5 TRUE PHOTOSTAT COPY OF THE LETTER DATED 28/3/2012 ISSUED BY 6TH RESPONDENT TO THE 3RD RESPONDENT** **ANNEXURE A6 TRUE PHOTOSTAT COPY OF THE REQUISITION TO THE 3RD RESPONDENT BY 6TH RESPONDENT.** - **ANNEXURE A7 TRUE PHOTOSTAT COPY OF THE LETTER OF REQUEST DATED 18/6/2012 ISSUED BY 6TH RESPONDENT TO RESPONDENTS 3 TO 5** **ANNEXURE A8 TRUE PHOTOSTAT COPY OF THE ORDER IN THE CRL.M.C 2305/2012 PASSED BY THIS HON'BLE COURT DATED 28/6/2012** **ANNEXURE A9 TRUE PHOTOSTAT COPY OF THE ORDER IN C.M.P NO.5012/2012 PASSED BY LEARNED CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 6/3/2014** ## **Crl.M.C.No.4505 of 2016** **:-18-:** ## **ANNEXURE A10** **TRUE PHOTOSTAT COPY OF THE ORDER IN CRL.R.P NO.48/2014 PASSED BY THE LEARNED ADDL. SESSIONS JUDGE, PALAKKAD DATED 31/5/2016**