Partly allowed

Francis.T.Chacko v. State of Kerala

Kerala HC8 Oct 2020Crl.MC/1424/2019

Case brief

AI extract

What is this about?

In two criminal miscellaneous cases challenging a final report under Sections 406, 415, 420, 467, 468, and 471 IPC r/w Section 34 IPC arising from a business partnership dispute, the Court quashed the proceedings against an auditor and a non-partner wife, directing the prosecution to proceed against the primary accused only, as the other faces required adjudication by evidence.

What did the court decide?

FIR and final report against Accused No. 2 quashed under Section 482 Cr.P.C.; final report against Accused No. 3 quashed; prosecution to proceed against Accused No. 1.

Francis.T.Chacko Vs State of Kerala — Cheating and Forgery | Kerala HC (2020)

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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 P.SOMARAJAN

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THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942

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Crl.MC.No.1424 OF 2019(G)

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CRIME NO.0736/2015 OF Palarivattom Police Station , Ernakulam

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PETITIONER:

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FRANCIS.T.CHACKO AGED 57 YEARS S/O. LATE MR. T. J CHACKO, CHARTERED ACCOUNTANT, THENGUMMOOTTIL BUILDING, OPPOSITE HIGH COURT, HAVING PERMANENT RESIDENCE AT THENGUMMOOTTIL, CALLEN ROAD, ALAPPUZHA. BY ADVS. SRI.SAJITH KUMAR V. SRI.AKHIL.T.S.

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RESPONDENTS/STATE AND COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, COCHIN THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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2 P.R. MANIKANDAN, S/O. RAMAKRISHNA PILLA, HOUSE NO. L.16, AMBADI, CHANGAMPUZHA NAGAR, KALAMASSERY, ERNAKULAM, KERALA-683 104.

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R1 BY ADV. SRI.RAMESH CHAND, PUBLIC PROSECUTOR R2 BY ADV. SRI.C.N.SREEKUMAR R2 BY ADV. SMT.MANJU PAUL R2 BY ADV. SRI.SABU P.JOSEPH R2 BY ADV. SRI.ANIL PRASAD R2 BY ADV. SMT.G.ASHWINI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.10.2020, ALONG WITH Crl.MC.2838/2019(D), 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 P.SOMARAJAN

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THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942

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Crl.MC.No.2838 OF 2019(D)

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AGAINST THE ORDER/JUDGMENT IN CC 529/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)

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CRIME NO.736/2015 OF Palarivattom Police Station , Ernakulam

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PETITIONERS/ACCUSED 1 & 3:

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1 P.S.DINESH KUMAR, AGED 52 YEARS, S/O. SOMASEKHARAN PILLAI, SIVAM, SRA 35A, PALACHUVADU, KAKKANAD, ERNAKULAM DISTRCIT

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2 RAJASREE DINESH, AGED 45 YEARS, W/O. DINESH KUMAR, SIVAM, SRA 35A, PALACHUVADU, KAKKANAD, ERNAKULAM DISTRICT

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BY ADVS. SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN

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RESPONDENTS/STATE, COMPLAINANT & DEFACTO COMPLAINANT:

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1 STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031

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2 THE ASSISTANT COMMISSIONER OF POLICE DISTRICT CRIME BRANCH, KOCHI - 682 011

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3 P. R. MANIKANTAN HOUSE NO. L 16, AMBADY, CHANGAMPUZHA NAGAR P. O., KALAMASSERY, KOCHI – 682033

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R1&R2 BY ADV. SRI.RAMESH CHAND, PUBLIC PROSECUTOR R3 BY ADV. SRI.C.N.SREEKUMAR R3 BY ADV. SMT.MANJU PAUL R3 BY ADV. SRI.SABU P.JOSEPH R3 BY ADV. SRI.ANIL PRASAD R3 BY ADV. SMT.G.ASHWINI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.10.2020, ALONG WITH Crl.MC.1424/2019(G), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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ORDER

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Crl.MC.1424/2019 is by accused No.2 and

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Crl.MC.2838/2019 by accused 1 and 3. Accused No.1 and 3 are the husband and wife and accused

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No.2 is their Auditor. The offene alleged are 406, 415, 420, 467, 468, 471 r/w Section 34 IPC.

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The defacto complainant is none else the bother-

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in-law of accused No.1. Earlier the defacto complainant and his wife were doing a business in the name and style of 'Sree Krisha Agencies' under a partnership. In the year 2007 the partnership was re-constituted by inducting accused No.1 as one of its partners and the business was successfully carried on for a longer period of seven years. Differences had arisen in the year 2014. Consequently, a settlement was arrived at by the parties to refer the settlement of account and financial differences to an arbitrator. It was also settled to give the 'Sree Krisha Agencies' exclusively to the accused

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Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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No.1 and two other agencies exclusively to the

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defacto complainant and his wife. It is

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thereafter proceedings were initiated before this Court for appointment of arbitrator, which is pending consideration. It is at that time the crime was registered on the allegation that some invoices and bills were falsely foisted and fabricated in the name of fictitious people so as to cause wrongful loss to the defacto complainant and wrongful gain to the accused persons.

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The accused No.3, the wife of accused No.1 is not a party to the transactions alleged. She is not a partner to the earlier firm or reconstituted firm and not a party to the settlement arrived at by dissolving the partnership. The allegation is mainly against the accused No.1. Final report was submitted without satisfying the element which would attract Section 34 of IPC and no evidence worth

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the name seen collected to show the involvement of accused No.3 in the commission of alleged

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Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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offence. As such, the FIR and final report submitted as against the accused No.3 is an abuse of process of Court, and will stand quashed.

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The accused No. 2, is only an Auditor.

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It is submitted that these documents were forged and fabricated with the active connivance of accused No.2. But no material was collected or produced by the investigation in that behalf except the fact that he had prepared and done the audit with respect to the business of partnership firm. Prima facie it appears that he has been unauthorizedly dragged into the crime without satisfying the element which would constitute Section 34 IPC. Hence the crime and the final report submitted as against accused No.2 cannot be sustained and liable to be quashed under Section 482 Cr.P.C.

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As regards the allegation against

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accused No.1, it requires adjudication by evidence. Hence it is not proper to exhaust the

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power under Section 482 cr.P.C against the

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Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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accused No.1.

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accordingly. The FIR and the final report

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against the accused No.2 will stand quashed.

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Crl.M.C. 2838/2019 is allowed in part. The final report against accused No.3 will stand quashed. The prosecution will be at liberty to proceed against accused No.1 in accordance with the law based on the final report submitted.

Sd/-

P.SOMARAJAN

JUDGE

SPV

Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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APPENDIX OF Crl.MC 1424/2019

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PETITIONER'S EXHIBITS:

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ANNEXURE A THE CERTIFIED COPY OF THE INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2014-15 FOR THE YEAR FOR THE SREEKRISHNA AGENCIES.

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ANNEXURE B TRUE COPY OF THE INCOME TAX ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2014-15 BY THE DEFACTOCOMPLAINANT. ANNEXURE C A TRUE COPY OF THE COMPUTATION OF INCOME FOR THE FINANCIAL YEAR 2013-14 FILED BY THE DE-FACTO COMPLAINANT. ANNEXURE D THE CERTIFIED COPY OF FIR IN CRIME NO. 736/2015 OF THE PALARIVATTOM POLICE STATION.

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ANNEXURE E THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 736/2015 FILED BEFORE THE HONB'LE FIRST CLASS JUDICIAL MAGISTRATE COURT IX KAKKANADE.

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ANNEXURE	F A CERTIFIED COPY OF THE RECEIPTS OF THE BANK STATEMENT OF THE PETITIONER DATED 05.03.2019 ISSUED BY THE STATE BANK OF INDIA, HIGH COURT BRANCH
ANNEXURE	G A TRUE COPY OF THE RECEIPTS DATED 04.07.2014 ISSUED BY THE STATE BANK OF INDIA TOWARDS SERVICE TAX
ANNEXURE	H A TRUE COPY OF THE RECEIPTS DATED 04.10.2014 ISSUED BY THE STATE BANK OF INDIA TOWARDS SERVICE TAX
ANNEXURE	I A TRUE COPY OF THE RECEIPTS DATED 05.01.2015 ISSUED BY THE STATE BANK OF INDIA TOWARDS SERVICE TAX
ANNEXURE	J A TRUE COPY OF THE RECEIPTS DATED 31.03.2015 ISSUED BY THE STATE BANK OF INDIA TOWARDS SERVICE TAX

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

PA TO JUDGE

Crl.MC.No.1424/2019& Crl.MC.No.2838/2019

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APPENDIX OF Crl.MC 2838/2019

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PETITIONERS' EXHIBITS:

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ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT FILED BY THE 2ND RESPONDENT DATED 19.03.2018 IN C.C.NO.529/2018 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KAKKANAD, ERNAKULAM

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RESPONDENNTS' EXHIBITS : NIL

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//TRUE COPY//

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PA TO JUDGE

Francis.T.Chacko v. State of Kerala

Case brief

What is this about?

What did the court decide?

Francis.T.Chacko v. State of Kerala

Case brief

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What did the court decide?

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