Dismissed

Suresh Mathew v. Baby Mathew

Kerala HC1 Nov 2016Crl.MC/6247/2016

Case brief

AI extract

What is this about?

The High Court refused to quash criminal proceedings against the accused for cheating and criminal breach of trust. Holding that allegations established a prima facie case, the Court declined interference under Section 482 CrPC, directing expeditious disposal.

What did the court decide?

Petition to quash proceedings under Sections 406 and 420 IPC dismissed; case remanded for expedited disposal.

Suresh Mathew Vs Baby Mathew — 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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TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938

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Crl.MC.No. 6247 of 2016 ()

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AGAINST THE ORDER/JUDGMENT IN CC 245/2011 of J.M.F.C., ETTUMANUR DATED

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CRIME NO. 1116/2010 OF ETTUMANOOR POLICE STATION , KOTTAYAM

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PETITIONER(S)/ACCUSED :

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SURESH MATHEW

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AGED 56 YEARS, NEDUMCHIRAYIL HOUSE, S/O. LATE MATHEW, S.H.MOUNT BHAGOM, NATTASSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM DISTRICT.

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BY ADV. SRI.P.KURUVILLA JACOB

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RESPONDENT(S)/DEFACTO COMPLAINANT:

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BABY MATHEW AGED 57 YEARS, S/O. MATHEW, VETTOOR VEEDU, ETTUMANOOR P.O., KOTTAYAM DISTRICT-686 631.

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THE STATE OF KERALA (S.I. OF POLICE ETTUMANOOR POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV. SRI.JOHNSON MANAYANI R1 BY ADV. SRI.JEEVAN MATHEW MANAYANI R BY PUBLIC PROSECUTOR, SRI. AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CONTD...

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:2:

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Crl.MC.No. 6247 of 2016 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE A1 CERTIFIED COPY OF COMPLAINT DATED 22.10.2010 LODGED BY FIRST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR, UNDER SECTION 153(3) OF THE CRPC.

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ANNEXURE A2 CERTIFIED COPY OF THE FIR REGISTERED BY 2ND RESPONDENT WITH CRIME NO.1116/2010 AGAINST PETITIONER BASED ON ANNEXURE-A1 COMPLAINT.

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ANNEXURE A3 CERTIFIED COPY OF FINAL CHARGE/FINAL REPORT SUBMITTED BY 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR IN CONNECTION WITH FIR NO.1116/2010 OF ETTUMANOOR POLICE STATION.

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ANNEXURE A4 CERTIFIED COPY OF THE STATEMENTS OF THE WITNESSES CONNECTED WITH CRIME NO.1116/2010 OF ETTUMANOOR POLICE STATION AND FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR.

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ANNEXURE A5 TRUE COPY OF PETITIONER'S REPLY NOTICE DATED 7.4.2010 ALREADY COMMUNICATED TO FIRST RESPONDENT'S COUNSEL.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

SKS

RAJA VIJAYARAGHAVAN.V., J

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- - - - Crl.M.C. No. 6247 of 2016

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- - - - Dated 1^st November, 2016

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O R D E R

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1.The petitioner is the accused in C.C. No.245 of 2011 on the file of the Judicial First Class Magistrate, Ettumanoor. He is proceeded against for having committed offences punishable under Sections 406 and 420 of the IPC.

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2.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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The learned counsel appearing for the petitioner submits that even if the allegations in the final report are admitted as true and correct , the offence under section 406 and 420 of the IPC will not be made out . Reference is made to the statements of the witnesses to content that the continuance of the prosecution will only be an abuse of

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Crl.M.C. No. 6247 of 2016

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process. A dispute, purely civil in nature, is being given a cloak of a criminal offence in disguise is the submission. The learned Counsel has relied on a catena of decisions to persuade this Court to hold that that this is an eminently fit case in which powers under section 482 of the Code could be exercised.

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4.The learned counsel appearing for the 1^st respondent on the other hand submits that the contentions raised by the petitioner are all in the realm of appreciation of evidence and this court while exercising its powers under Section 482 of the Code of Criminal Procedure should refrain from meticulously analysing the same.

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5.The learned Public Prosecutor on instructions refutes the submissions of the learned Counsel and submits that the investigation conducted reveals the complicity of the petitioner. No reasons are warranted to quash the proceedings at this stage is the submission.

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Crl.M.C. No. 6247 of 2016

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6.The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by this Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court is expected to refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The powers cannot be exercised to stifle a legitimate prosecution and can be exercised only in the rarest of rare cases.

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7.From the perusal of the materials on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioner. All the submissions made at the Bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 of the Code. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of R.P. Kapur Vs. State

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Crl.M.C. No. 6247 of 2016

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of Punjab (AIR 1960 SC 866), State of Haryana Vs. Bhajan Lal (1992 SCC (Cr) 426), State of Bihar Vs. PP Sharma (1992 SCC (Cr.) 192) and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (2005 SCC (Cr.) 293).

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I find no good reason to interfere under Section 482 Cr.P.C. The learned Magistrate shall strive to dispose of the matter expeditiously, taking note of the fact that the case is pending since the year 2011.

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The petition is disposed off.

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RAJA VIJAYARAGHAVAN.V., JUDGE

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SKS

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//TRUE COPY//

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P.A. TO JUDGE

Suresh Mathew v. Baby Mathew

Case brief

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Suresh Mathew v. Baby Mathew

Case brief

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