Disposed

P.D.Chacko v. State of Kerala

Kerala HC6 Nov 2019Bail Appl./1016/2019

Case brief

AI extract

What is this about?

The Court disposed of a joint bail application and criminal miscellaneous case regarding Section 406 IPC allegations. While noting the potential bar of limitation, the Court granted anticipatory bail under specific conditions and ordered the investigation agency to complete the investigation and file a final report within three months.

What did the court decide?

Anticipatory bail granted on bond with conditions; interim stay vacated; direction to complete investigation and file final report within 3 months.

P.D.Chacko Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2019)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941 Bail Appl..No.1016 OF 2019

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CRIME NO.2704/2018 OF Changanassery Police Station , Kottayam

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PETITIONER/S:

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1 P.D.CHACKO, AGED 68 YEARS S/O.DEVASIA(LATE),PALLATHU HOUSE,MANYAMATTOM, MOOZHOOR.P.O,KOTTAYAM DISTRICT.

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2 ANNI JACOB @ ANNIAMMA, AGED 64 YEARS W/O.P.D.CHACKO,PALLATHU HOUSE,MANYAMATTOM, MOOZHOOR.P.O,KOTTAYAM DISTRICT.

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BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN

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RESPONDENT/S:

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1 STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 STATION HOUSE OFFICER, CH,ANGANACHERRY POLICE STATION, CHANGANACHERRY,KOTTAYAM-686535.

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3 LUCKSON FRANCIS, S/O FRANCIS, KALLUMADICKAL HOUSE, THURUTHU PO, KURICHI, CHANGANACHERY PO, KOTTAYM DISTRICT-686535. (DELETED) (THIRD RESPONDENT OCCURRING IN THE CAUSE TITLE OF B.A.1016/2019 IS DELETED FROM THE RESPONDENTS ARRAY AS PER ORDER DATED 14.6.2019 IN CRL.MA NO.1/2019)

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(THRESSIAMMA AUGUSTINE, AGED 75, W/O LATE. K.F. AUGUSTINE, KALLUMADIKAL HOUSE, THURUTHY PO, CHANGANACHERRY-686535. ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 14.6.2019 IN CRL.MA NO.1/2019)

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R3 BY ADV. VARGHESE C.KURIAKOSE

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OTHER PRESENT:

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SRI.T.R.RENJITH,PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.11.2019, ALONG WITH Crl.MC.4288/2019(E), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941

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Crl.MC.No.4288 OF 2019(E)

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CRIME NO.2704/2018 OF Changanassery Police Station , Kottayam

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PETITIONER/S:

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1 P.D.CHACKO, AGED 68 YEARS S/O.DEVASIA (LATE), PULLATHU HOUSE, MANYAMATTOM, MOOZHOOR P.O., KOTTAYAM DISTRICT.

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2 ANNI JACOB @ ANNIAMMA, AGED 64 YEARS W/O.P.D.CHACKO, PALLATHU HOUSE, MANYAMATTOM, MOOZHOOR P.O., KOTTAYAM DISTRICT.

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BY ADVS.

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SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN

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RESPONDENT/S:

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1 STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2 STATION HOUSE OFFICER, CHANGANACHERRY POLICE STATION, CHANGANACHERRY, KOTTAYAM - 686 535.

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3 THRESSIAMMA AUGUSTINE, W/O.(LATE) K.F.AUGUSTINE, KAILIMADICKAL HOUSE, THURUTHY P.O., CHANGANACHERRY, KOTTAYAM - 686 535.

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OTHER PRESENT:

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SRI.T.R.RENJITH, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.11.2019, ALONG WITH Bail Appl..1016/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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B.A.No. 1016/2019 & Crl.M.C.No. 4288/2019

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==================

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Dated this the 6^th day of November, 2019

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O R D E R

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As the aforecaptioned anticipatory bail application and the Criminal Miscellaneous Case have been filed by the very same petitioners (accused) in relation to their involvement as accused in the very same crime, these matters are disposed of on the basis of this common order.

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B.A.No. 1016/2019:

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The two applicants in the above bail application seek grant of anticipatory bail in relation to their involvement as accused Nos.1 and 2 among the two accused in the impugned Crime No. 2704/2018 of Changanacherry Police Station, registered for offence punishable under Sec.406 of the I.P.C. on the basis of the first information statement given by additional 3^rd respondent lady defacto complainant on 5.12.2018 at about 4.30 p.m. in respect of the alleged incidents happened on 10.1.2005, etc.

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The brief of the prosecution case is that the daughter of the petitioners herein (A-1 and A-2) has married the son of the additional 3^rd respondent lady defacto complainant and that the

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B.A.1016/19 & Crl.M.C.No. 4288/19

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: 4 :-

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abovesaid spouses are having serious marital discords. Further it is stated that the lady defacto complainant had to proceed to United Kingdom, where her son and daughter-in-law were settled and she was so sanctioned VISA in that regard and before proceeding to the said foreign country on 10.5.2005, she had entrusted 67 sovereigns and 27 grams of her gold ornaments to accused 1 and 2, who are the parents of the lady defacto complainant's daughter-in-law, on the assurance that the petitioners would keep the said gold ornaments in safe custody in a bank locker and to give back the said gold ornaments to the lady defacto complainant after her return from the UK and later, they have breached their assurance and has not cared to return back the said gold ornaments to the lady defacto complainant and thereby the accused persons have committed the abovesaid offence, etc.

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Sri.Julian Xavier, learned counsel appearing for the petitioners would submit that the abovesaid allegations are absolutely false and fabricated and that the petitioners have never been entrusted with any gold ornaments by the lady defacto complainant. On the other hand, the gold ornaments given to their daughter at the time of her marriage was entrusted by her to the lady defacto

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B.A.1016/19 & Crl.M.C.No. 4288/19 - : 5 :-

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complainant herein and that the daughter of the petitioners has been treated with cruelty and harassment by her husband and other family members including the lady defacto complainant herein and their daughter was constrained to seek protection order in the UK and she was granted protection order in that foreign country from her husband and as a retaliation, their daughter's husband has issued Anx. A-1 legal notice dated 27.9.2018 and has also published various insinuating news in the social media and that the petitioners had asked their daughter to execute a power of attorney in favour of the 1^st petitioner so as to save the property, which was purchased with the money of the petitioners' daughter and also to recover the gold ornaments and money entrusted with her husband's family. That Anx.A-3 O.P(C).No. 1374/2018 had been filed by their daughter before the Family Court, Ettumanoor, Kottayam on 29.10.2018. That the 1^st petitioner has also filed petition for declaration of title and possession of the property purchased by their daughter by filing Anx. A-4 Original Petition, O.P.No. 1375/2018 before the Family Court, Ettumanoor, Kottayam, on 29.10.2018. That it is only in retaliation to such matrimonial litigative proceedings that the lady defacto complainant and her family members have now fabricated false

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B.A.1016/19 & Crl.M.C.No. 4288/19 - : 6 :-

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allegations against the petitioners with a new story that gold ornaments were entrusted to the petitioners in 2005, etc. only to malign them and to put pressure on them so as to compel their daughter to withdraw from all litigative proceedings, etc. Further, crucially, Sri.Julian Xavier, learned counsel appearing for the petitioners accused would point that even going by the admitted allegations in the FI statement, which led to the registration of the instant Crime No. 2704/2018 of Changanacherry Police Station, it can seen that the alleged incident is said to have happened some time in 10.1.2005 and allegations of breach of trust, etc. are made for the first time by filing the instant FIS as late as on 5.12.2018.

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Further that the maximum sentence that can be awarded for the offence as per Sec. 406 of the I.P.C. (punishment for criminal breach of trust) would extend only upto 3 years and that Sec. 468(2) (c) contained in Chapter XXXVI of the Cr.P.C. which deals limitation for taking cognizance of certain offences, mandates that no court shall take cognizance of an offence of the category specified in sub section (2) of Sec. 468, beyond the period of 3 years. Further that Sec. 468(1) contained in Chapter XXXVI of the Cr.P.C., which deals with limitation for taking cognizance of certain offences, mandates that except as otherwise

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B.A.1016/19 & Crl.M.C.No. 4288/19 - : 7 :-

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provided elsewhere in the Cr.P.C., no court shall take cognizance of an offence of the category specified in sub section (2) after the expiry of the period of limitation and further that Sec.468(2)(c) of the Cr.P.C. would further mandate that the period of limitation shall be 3 years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years and that in the instant case, even going by the admitted prosecution allegation, the period of limitation has expired long ago and there is no question of taking any cognizance in this case, even if final report/charge sheet is filed and therefore, the very inception and continuance of the impugned criminal proceedings is nothing but an abuse of the process of the court, etc. Accordingly, it is urged that the custodial interrogation of the petitioners is not necessary in this case and that this Court may grant anticipatory bail to the petitioners subject to appropriate conditions.

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Per contra, Sri.Varghese C.Kuriakose, learned counsel appearing for the additional 3^rd respondent lady defacto complainant would strongly urge that the contentions of the petitioners are untenable and that this Court may not grant anticipatory bail, etc.

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The learned Prosecutor has also opposed the plea for

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B.A.1016/19 & Crl.M.C.No. 4288/19

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: 8 :-

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grant of anticipatory bail.

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After having heard both sides and after careful evaluation of the facts and circumstances of this case, more particularly taking into account some of the aspects highlighted herein above by the petitioners, this Court is inclined to take the view that custodial interrogation of the petitioners may not really be warranted or necessary for effectuating smooth and fair conduct of the investigation in this crime. Accordingly, it is ordered in the interest of justice that in the event of the petitioners being arrested in relation to the instant crime, then the petitioners shall be released on bail on their separately executing bond for Rs.40,000/- each and on the separately furnishing two solvent sureties for the like sum, both to the satisfaction of the investigating officer concerned. However,, the grant of bail will be subject to following conditions:-

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(i) The petitioners shall not involve in any criminal offences of similar nature.

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(ii) The petitioners shall fully co-operate with the investigation.

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(iii) The petitioners shall report before the investigating officer as and when required in that connection.

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(iv) The petitioners shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever.

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If there is any violation of the abovesaid conditions by the

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petitioners, then the jurisdictional court concerned will stand hereby

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B.A.1016/19 & Crl.M.C.No. 4288/19

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: 9 :-

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empowered to consider the plea for cancellation of bail at the appropriate time.

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With these observations and directions, the above Bail Application will stand disposed of.

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Crl.M.C.No. 4288/2019:

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The two petitioners herein are the two applicants in aforecaptioned anticipatory bail application, B.A.No.1016/2019, which has been dealt with herein above and they seek quashment of the aforecaptioned impugned Crime No.2704/2018 of Changanacherry Police Station, wherein they have been arrayed two accused persons.

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The main contentions raised by the petitioners are as

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follows:

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(a) The Magistrate has no power to take cognizance in an offence, which is barred by limitation under Sec.468 of the Cr.P.C. since the alleged incident had taken place on 1.1.2005 and 9.5.2005. Hence the Judicial First Class Magistrate's Court, Changanacherry, went wrong in forwarding Annexure-A2 complaint to the 2^nd respondent.

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(b) Anx.A-2 complaint has no bona fide and is filed only after getting notice from the Family Court in Anx. A6 complaint for return

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B.A.1016/19 & Crl.M.C.No. 4288/19

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: 10 :-

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of money/gold ornaments.

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an abuse of process.

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One of the main contentions raised by Sri..Julian Xavier, learned counsel appearing for the petitioners/accused is that the maximum sentence that could be awarded for the offence as per Sec. 406 of the I.P.C. (criminal breach of trust) is only upto 3 years and as per Sec.468 of the Cr.P.C. which is included in Chapter XXXVI (which deals bar to take cognizance after lapse of the period of limitation) no court shall take cognizance of an offence as in the nature as specified therein after 3 years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. That in the instant case, the said period of limitation has expired long ago and that the very inception and continuance of the impugned criminal proceedings is nothing but an abuse of the process of the court.

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Sri.T.R.Renjith, learned Prosecutor and Sri.Varghese C.Kuriakose, learned Advocate appearing for the respondent defacto complainant in the connected anticipatory bail application have been heard.

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The learned counsel for the 3^rd respondent lady defacto

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B.A.1016/19 & Crl.M.C.No. 4288/19 - : 11 :-

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complainant would strongly oppose the pleas in this Criminal Miscellaneous Case. This court has already granted anticipatory bail to both the petitioners as per the abovesaid order rendered today (6.11.2019) in the aforecaptioned B.A.No. 1016/2019. The petitioners will not be prejudiced in any manner if the investigating agency is given liberty to complete the investigation strictly in accordance with law so that the final report is filed by the investigating officer without any further delay so that in case any of the parties have any legally justiciable grievances thereto, they will be at liberty to work out their remedies thereto in the manner known to law. Accordingly, without getting into the merits of the controversy in any manner, it is ordered in the interest of justice that the interim stay granted in this case will stand vacated and the investigating agency will proceed to complete and finalise the investigation strictly in accordance with law so as to file final final report/charge sheet in this case before the competent criminal court concerned without much delay, preferably within a period of 3 months from the date of production of a certified copy of this order. Before filing the final report, the investigating agency will specifically consider and advert to the abovesaid specific contentions raised by the petitioners regarding the bar of limitation in view of the

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B.A.1016/19 & Crl.M.C.No. 4288/19

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provisions contained in Chapter XXXVI of the Cr.P.C., more particularly Sec. 468 thereof and investigating officer will also take necessary legal opinion/advice from the Director General of Prosecutions regarding the said crucial legal aspect of bar of limitation and then only should file the final report. After filing of the final report, if any of the abovesaid rival parties have any legally justiciable grievances thereto, liberty is accorded to them to work out their remedies thereto, in the manner known to law.

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With the said liberty and with the above observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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APPENDIX OF Crl.MC 4288/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF THE FIR NO.2704/2018 REGISTERED BY THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY. ANNEXURE A3 TRUE COPY OF THE LEGAL NOTICE DATED 27/9/2018 ISSUED ON BEHALF OF LUCKSON FRANCIS TO THE PETITIONERS' DAUGHTER. ANNEXURE A4 TRUE COPY OF THE INTERNET PHOTO AND NEWS PUBLISHED BY LUCKSON FRANCIS HIMSELF. ANNEXURE A5 PHOTOS OF THE ENGAGEMENT. ANNEXURE A6 TRUE COPY OF THE PETITION NO.1374/2018 DATED 29/10/2018 FILED BY THE 1ST PETITIONER. ANNEXURE A7 TRUE COPY OF THE ORIGINAL PETITION NO.1375/2018.

P.D.Chacko v. State of Kerala

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P.D.Chacko v. State of Kerala

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