Quashed

M.S.Hariharan Nair v. State of Kerala

Kerala HC22 Oct 2009Crl.MC/3049/2009

Case brief

AI extract

What is this about?

The High Court of Kerala held that under Section 212(2) of CrPC, a charge for criminal breach of trust covering more than one year is legally impermissible. The court quashed the existing charge and directed the trial court to frame a fresh charge covering only the first year, allowing the prosecution to file a separate charge for the remaining period.

What did the court decide?

Charge quashed; Petitioner to be tried for period 12/4/1997 to 11/4/1998; Prosecution permitted to file fresh charge for remaining period.

M.S.Hariharan Nair Vs State of Kerala — Corruption | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931

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Crl.MC.No. 3049 of 2009()

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------------------------CC.10/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT,-I ADIMALI ....................

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PETITIONER(S): PETITIONER

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M.S.HARIHARAN NAIR, S/O.VASUDEVA PANICKER,HIMALAYAM VEEDU, CHITHIRAPURAM KARA,PALLIVASAL VILLAGE.

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BY ADV. SRI.GEORGEKUTTY MATHEW

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RESPONDENT(S): RESPONDENT

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STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR,J.

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CRL.M.C.NO.3049 OF 2009

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Dated 22^nd October 2009

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O R D E R

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Petitioner is the first accused in C.C.10/2007 on the file of Judicial First Class Magistrate-I, Adimali. By Annexure-C order learned Magistrate dismissed the petition filed by the petitioner for filing a split up charge contending that petitioner cannot be tried in one case for breach of trust or misappropriation for a period in excess of one year as provided under Sub Section 2 of Section 212 of Code of Criminal Procedure.

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Learned counsel appearing for the

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petitioner and learned Public Prosecutor were heard.

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Annexure-A final report shows that prosecution case is that petitioner misappropriated the amount due to Kallar Service Co-operative Bank by forging vouchers and falsifying the accounts and thereby committed breach of trust and offences under Sections 406, 409, 468, 471 read with Section 34 of Indian Penal Code were registered. As per the charge

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Crmc 3049/09 2

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the offence was committed during the period from 12/4/1997 to 13/6/1998. The only question for consideration is whether petitioner could be tried by framing one charge for the entire period which exceed one year.

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Section 212 deals with particulars as to time, place and persons. Sub Section 2 of Section 212 of Code of Criminal Procedure reads,

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“When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219.

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Provided that the time included between the first and last of such

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Crmc 3049/09

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dates shall not exceed one year.”

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Therefore, though an accused could be charged with criminal breach of trust or dishonest misappropriation of money without specifying particular items or exact dates but showing the dates between which the offence is alleged to have committed proviso mandates that the time included between first and last of such dates shall not exceed one year.

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Sub Section 2 is an exception to the normal rule that there should be a charge for each distinct offence as provided under Section 218 of the Code. By virtue of sub section 2 of Section 212 when it may not be possible to specify exactly particular items with respect of which criminal breach of trust took place or the exact date on which the individual items were misappropriated, the court is empowered to add up the various items with respect to which criminal breach of trust was committed and to mention the total amount misappropriated within a period of one year, in the charge. When it is done, the charge is deemed to be the charge for one offence. But in view of the proviso

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Crmc 3049/09

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to sub section 2 of Section 212, the time of dishonest misappropriation of money or breach of trust alleged from the first day to the last day shall not exceed one year. Therefore, the petitioner could be

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tried in this case only for misappropriation or criminal breach of trust committed for a period of one year from the first date to the last date. Though learned Public Prosecutor submitted that in view of Sub Section 2 of Section 220 petitioner could be tried in one charge for the offences committed for any period, Sub section 2 of Section 220 only provides that when a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub Section 2 of Section 212, which could only be for a period of one year from the first date to the last date or in sub Section 1 of Section 219, which provides that when a person is accused of more offences than one of the same kind within a space of twelve months could be charged and tried at one trial and is accused of committing, for the purpose of facilitating or concealing the

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Crmc 3049/09

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commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. Sub section 2 of Section 220 does not widen the period, provided by the proviso to sub section 2 of Section 212. In such circumstances, charge is to be limited for a period of one year from 12/4/1997. Prosecution is at liberty to file a fresh charge for the remaining period.

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Petition is disposed quashing the charge framed and directing the Judicial First Class Magistrate-I, Adimaly to frame fresh charge limiting the charge for the period from 12/4/1997 till 11/4/1998. Prosecution is permitted to submit a fresh charge for the remaining period.

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M.SASIDHARAN NAMBIAR, JUDGE.

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uj.

M.S.Hariharan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.S.Hariharan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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