Allowed

George Varghese v. State of Kerala

Kerala HC16 Dec 2016Crl.MC/3351/2013

Case brief

AI extract

What is this about?

The court allowed the petitioner's petition to quash criminal proceedings for cheating and forgery regarding passport issuance. Finding that the petitioner lost an old passport, applied for a new one due to negligence, surrendered it upon discovery, paid the penalty, and there was a long delay in the investigation, the court held continuing the case to be an abuse of process.

What did the court decide?

The criminal proceedings in Crl.M.C. No. 3351 of 2013 were quashed as an abuse of the process of court.

George Varghese Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938

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Crl.MC.No. 3351 of 2013 ()

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CRIME NO. 384/2011 OF KOTTARAKKARA POLICE STATION , KOLLAM

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PETITIONER(S)/PETITIONER/ACCUSED:

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GEORGE VARGHESE AGED 37 YEARS, S/O GEORGE KUTTY K.V., ARANMULA TINU NIVAS, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM.

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BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT/COMPLAINANT/STATE:

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STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.384/2011 OF KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT).

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BY PUBLIC PROSECUTOR SRI.AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3351 of 2013 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES ----------------------ANNEXURE I: COPY OF THE PROCEEDINGS OF PASSPORT OFFICE, THIRUVANANTHAPURAM, DATED 15.11.2010. ANNEXURE II: COPY OF THE RECEIPT ISSUED TO THE PETITIONER FOR THE AMOUNT OF RS.5,000/- ACCEPTED BY THE AUTHORITIES. ANNEXURE III: COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.384/2011 OF KOTTARAKKARA POLICE STATION ALONG WITH A LETTER SUBMITTED BY THE SUPERINTENDENT OF POLICE AND THE ENQUIRY REPORT ON THE PASSPORT APPLICATION SUBMITTED BY THE PETITIONER.

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RESPONDENT(S)' ANNEXURES -----------------------

NIL

/TRUE COPY/

VPS PS TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

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----------------------------------------

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Crl.M.C. No.3351 of 2013

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Dated this the 16^th day of December, 2016

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O R D E R

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1.The petitioner is the sole accused in Crime No.384 of 2011 of the Kottarakkara Police Station registered for the offences punishable under sections 468 and 471 of the IPC and under section 12(1)and 12(b) of the Passports Act, 1967.

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2.The prosecution allegation is that the petitioner produced fake documents before the Passport Office, Bombay on 9.2.2001 and obtained a passport bearing No.'B3409191' suppressing the fact that he had already obtained passport No. 'P895266' from the Passport Office, Thiruvananthapuram.

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3.Heard the learned counsel appearing for the petitioner as well as the learned public prosecutor.

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Crl.M.C.3351/2013

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4.The learned counsel appearing for the petitioner submits that a passport was originally obtained by the petitioner from the Thiruvananthapuram Passport Office in the year 1993. The same was misplaced. Later, in the year 2001, while he was working at Mumbai, he applied for a fresh passport and obtained the same. Using the said passport, he had gone abroad. Later, when the passport obtained from the Thiruvananthapuram Passport Office was traced out by one of his friends from Mumbai, the same was sent to his residential home in the State of Kerala. When the petitioner returned from abroad, he approached the Passport Officer, Thiruvananthapuram and surrendered both the passports. On the premise that the petitioner had suppressed material facts and obtained a passport in his name, the Passport Officer, Thiruvananthapuram ordered the imposition of penalty of Rs.5,000/- under the provision of Section 12(1)(b) of the Act in terms of the Order No.VI/401/61/2001 dated 22.1.2001 of the Ministry

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Crl.M.C.3351/2013

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of External Affairs and the petitioner was directed to remit the amount. In terms of the said order, the petitioner has remitted the sum of Rs.5,000/- on 15.11.2010 as is evidenced by Annexure-II. According to the learned counsel, it was thereafter that the instant crime was registered on 19.2.2011. Referring to Annexure-III it is submitted that the name of the petitioner’s father is shown as George Kutty Kizhakkekara and the petitioner had not furnished any false information before the passport officer at the time of applying for passport. It is also submitted that the provisions under section 12(1)(b) of the Act is not attracted as the petitioner has not furnished any false information intentionally or suppressed any material information with a view to obtain a passport. According to the petitioner, it was owing to the fact that he had misplaced his earlier passport that he had applied for a fresh passport and immediately on coming to know that the passport misplaced was traced out, the same was

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Crl.M.C.3351/2013

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surrendered before the passport officer voluntarily. The learned counsel also relied on the decision of this Court in Shymesh v. State of Kerala (2014 (3) KLT 270) to contend that the prosecution cannot be sustained in view of the fact that the investigating agency has not obtained sanction under section 15 of the Act prior to the launching of the prosecution under the Act. According to the learned counsel, the continuance of proceedings as against the petitioner is clearly an abuse of the process and the same is liable to be dismissed.

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5.The learned Public Prosecutor submits that the crime was registered as directed by the Superintendent of Police by Annexure-III. According to the learned Public Prosecutor the investigation so far conducted would reveal that the petitioner had produced bogus documents before the Passport Officer. It is urged that this is not a fit case where this Court would be justified in quashing the proceedings.

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Crl.M.C.3351/2013

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6.I have considered the rival submissions and have gone

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through the materials on record.

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7.It is borne out from the records that it was on 24.8.1993 that the petitioner had secured a passport from the Passport Office, Thiruvananthapuram. In the said passport, he had furnished his date of birth as 16.5.1976 and the father's name as George Kutty Kizhakkekara. He had travelled abroad using the earlier passport during the period 1996-2000. From 2000-2005 he was staying along with his Aunt at Mumbai. Since he had misplaced the passport, he had applied for a fresh passport by providing his school leaving certificate on 9.2.2001. In the said passport, the same details as furnished in the earlier passport were submitted. Using the said passport which was obtained from Mumbai, he had gone to Dubai and had returned back on 2005. While he was abroad, it appears that his passport was traced out and if the prosecution records are to be believed, the petitioner had surrendered

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Crl.M.C.3351/2013

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the said passport before the passport officer, in the year 2010. It appears from Annexure-II that the Passport Officer taking note of the various aspects of the case decided to impose penalty under section 12(1)(b) of the Passports Act in terms of the circulars issued by the Ministry of External Affairs. The punishment provided for violating Section 12(1)(b) of the Passports Act is imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,000/- or with both. The petitioner has been ordered to pay a fine of Rs.5000/- which has been remitted by the petitioner. It was thereafter that the crime was registered on the basis of re-verification. The final report has not been laid till date. The long and inordinate delay in laying the final report coupled with the fact that the offence was compounded by imposing penalty as is revealed from Annexures I and II persuades me to hold that the continuance of proceeding is a clear abuse of process.

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Crl.M.C.3351/2013 7

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In the aforesaid circumstances, I am of the considered view that fit case where this Court can exercise its extra ordinary powers under section 482 of the code to quash the proceedings.

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In the result, this petition is allowed.

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Sd/-

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RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

George Varghese v. State of Kerala

Case brief

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George Varghese v. State of Kerala

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