The High Court quashed the criminal proceedings under S.420 IPC against the petitioner (2nd accused), holding that the prosecution was initiated with an ulterior motive as no prima facie case existed against her distinct from the 1st accused.
All further proceedings in C.C.No.773/2011 as against the petitioner stood quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
Crl.MC.No. 2367 of 2012 ()
C.C.NO.773/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR
PETITIONER(S)/2ND ACCUSED:
RAJSHREE BHATTER, AGED 40 YEARS, D/O.SREEDAS BHATTER, G-3/85, SHREENIKETHAN, PANAMPILLY NAGAR, ERNAKULAM.
BY ADVS. SRI.ABRAHAM P.GEORGE
SRI.K.VINODKUMAR (707/89) SMT.M.SANTHY
RESPONDENT(S)/STATE/DE FACTO COMPLAINANT/1ST ACCUSED:
1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. PAUL, AGED 34 YEARS, S/O. KURIAN, VARAKKULAM HOUSE, KALADY DESOM, VADAKKUMBHAGAM VILLAGE, ALUVA TALUK - 683 574
3. BIJU,
S/O. JOSEPH, STEEL MAX, PUTHODE ROAD, TRICHUR - 680 001
R1 BY PUBLIC PROSECUTOR SRI.K.K.RASJEEV.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 2367 of 2012 ()
APPENDIX
PETITIONER(S) ANNEXURES:
ANNEXURE A1 : THE CERTIFIED COPY OF THE CHARGE SUBMITTED BY THE POLICE IN C.C.NO.773/2011.
ANNEXURE AII: CERTIFIED COPY OF THE FIR IN CRIME NO.124/2010.
ANNEXURE AIII: CERTIFIED COPY OF ORIGINAL COMPLAINT SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR.
ANNEXURE AIV: CERTIFIED COPY OF THE SEIZURE MAHAZAR.
RESPONDENTS' ANNEXURES
NIL
//True Copy//
P.A. To Judge
Bb
RAJA VIJAYARAGHAVAN V, J.
Crl.M.C.No.2367 of 2012
Dated this the 07th day of April, 2016
O R D E R
1.The petitioner is the 2nd accused in C.C.No.773/2011 on
the files of the Judicial First Class Magistrate Court, Perumbavoor. She seeks to quash all further proceedings in the above case on the ground that the continuation of proceedings as against her is nothing, but, an abuse of process of court.
One Mr. Jose, who was having close acquaintance with the de facto complainant, introduced the 1st accused Biju to him in the month of Dec.2009. Biju, it appears was the proprietor of a Steel Pipe Trading Company run in the name and style as “STEEL MAX”. The de facto complainant was persuaded to believe that the accused Nos. 1 and 2
Crl.M.C.No.2367 of 2012 : 2 :
were planning to export latex to China on the strength of a license to be obtained in the name of the petitioner and was intent on setting up a new business venture. The complainant was induced to invest funds in the said venture. According to the de facto complainant, discussions were held on 03.01.2010 and on 04.01.2010 at various places and finally, the de facto complainant agreed to invest a sum of 30 Lakhs. Pursuant to the above agreement, on 09.01.2010, the accused Nos.1 & 2 came to his residential home and received a sum of 10 Lakhs towards the first installment. The accused had undertaken that the de facto complainant would be made a partner in the business. Later, a sum of `20 Lakhs was demanded from the de facto complainant, but he refused to pay the amount. Later, on enquiry, he came to understand that the intention of the accused was to defraud the de facto complainant and that they had no intention of setting up any business venture. According to
Crl.M.C.No.2367 of 2012 : 3 :
the de facto complainant, he was induced by the accused to deliver money with devious intent and the acts of the accused are punishable under S.420 r/w S.34 of the IPC.
Crl.M.C.No.2367 of 2012 : 4 :
accused is the proprietor. It was in the said letter that the 1st accused had acknowledged the receipt of a sum of 10 Lakhs from the de facto complainant. The only reference made in that letter is with regard to some discussion which the parties had with the petitioner herein. It is further submitted that it was undertaken by the 1<sup>st</sup> accused that interest of 50,000/- would be paid to the de facto complainant before the 5th of every month and a sum of `10 Lakhs was accepted towards allotment of 10% of the share in the steel trading company by name “STEEL MAX”. This according to the learned counsel is diametrically opposite to the averments in Annexure AIII complaint wherein a different story is narrated with the objective of roping in the petitioner. The learned counsel also invited the attention of this court to the witnesses cited in the charge, and submitted that their statements are all concerning the transactions between the de facto complainant and the 1st accused. According to the learned
Crl.M.C.No.2367 of 2012 : 5 :
counsel, it does not appear from the prosecution records that the petitioner herein had anything to do with the understanding arrived at between the de facto complainant and the 1st accused. It is further contended by the learned counsel that even if the allegations leveled in the complaint are taken as true, in so far as the petitioner is concerned, no offence under S.420 is made out. According to the learned counsel, when the allegations in the FIR and also in the final report are so absurd and inherently improbable on the basis of which no prudent person can ever come to a conclusion that there are sufficient grounds for proceeding against the accused, this Court will be justified in interfering under S.482 of the Cr.P.C. in order to bring the vexatious criminal proceedings to a premature termination.
6.On the other hand, the learned Public Prosecutor would vehemently oppose the contentions of the learned counsel and would submit that when a prima facie foundation has
Crl.M.C.No.2367 of 2012 : 6 :
been laid in a criminal case, it is not for this Court to weigh and sift the evidence and to quash the prosecution at the inception itself. According to the learned Public Prosecutor, it is for the petitioner to prove his innocence and short circuiting the criminal case is not desirable.
9.Annexure AIII complaint would reveal that there was originally a transaction involving the de facto complainant and the accused Nos.1 & 2 and certain sums money had changed hands. The letter said to have been executed by the 1st accused in favour of the de facto complainant does not reveal that the petitioner had anything to do with the transactions between the de facto complainant and the 1st accused. Though in the complaint reference is made to the commencement of an export business to China on the
Crl.M.C.No.2367 of 2012 : 7 :
strength of a licence which stood in the name of the petitioner herein, the letter, which is the basis of the transaction would reveal that the money was advanced for the purpose of investment in the proprietary business of the 1st accused. The 1st accused had also undertaken to pay a sum of `50,000/- every month to the de facto complainant. It also appears that the witnesses in the charge are cited to prove the transaction entered into between the 1st accused and the de facto complainant. None of the witnesses nor the documents produced reveals that the petitioner had anything to do with the transactions arrived at between the 1st accused and the de facto complainant, though it appears that the 1st accused had utilized the name of the petitioner as well.
10.It appears to me that, in so far as the petitioner herein is concerned, the criminal prosecution initiated is maliciously instituted with ulterior motive and it does not appear to me that the uncontroverted allegations in the FIR or in the
Crl.M.C.No.2367 of 2012 : 8 :
final report would make out a prima facie case as against the petitioner herein.
11.In view of the above, I am of the view that the proceedings, in so far as the petitioner, who is the 2nd accused in the Annexure AI final report, is liable to be quashed. I do so. All further proceedings in C.C.No.773/2011 on the files of the Judicial First Class Magistrate Court, Perumbavoor as against the petitioner will stand quashed.
Sd/-
RAJA VIJAYARAGHAVAN V, JUDGE.
Bb
[True copy]
P.A to Judge
1 issue framed by the court
Whether criminal proceedings under S.420 IPC against the petitioner, who was allegedly roped in, are an abuse of process of court and liable to be quashed under S.482 Cr.P.C.
2 provisions across 2 enactments
RAJSHREE BHATTER
STATE OF KERALA
PAUL
BIJU
RAJA VIJAYARAGHAVAN V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
