Allowed

Sooraj Babu v. State of Kerala

Kerala HC18 Oct 2023Crl.MC/5117/2023

Case brief

AI extract

What is this about?

In a criminal miscellaneous case, the Kerala High Court quashed proceedings against the petitioner, the second accused, holding that neither the private complaint nor the final report contained any allegation implicating him in the alleged offences of cheating and criminal breach of trust regarding bank fixed deposits. The petition invoking Section 482 CrPC was allowed.

What did the court decide?

Procedings against the petitioner/second accused in C.C.No.409 of 2023 at Nedumangad stand quashed.

Sooraj Babu Vs State of Kerala — Bail and Remand | Kerala HC (2023)

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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 GOPINATH P.

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WEDNESDAY, THE 18TH DAY OF OCTOBER 2023 / 26TH ASWINA, 1945
CRL.MC NO. 5117 OF 2023

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CC 409/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III (FOREST OFFENCES), NEDUMANGAD CRIME NO.437/2023 OF VITHURA POLICE STATION, THIRUVANANTHAPURAM PETITIONER/2ND ACCUSED :

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SOORAJ BABU
AGED 28 YEARS
S/O SHEEJA ANTONY, THAIPARAMBIL HOUSE,
CHAYAM, CHITTUVEETUMURI, VITHURA P.O,
THOLIKODE VILLAGE, THIRUVANANTHAPURAM,
PIN - 695551
BY ADV Babu S. Nair

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RESPONDENTS/STATE & DEFACTO COMPLAINANT :

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2PENNAMMA ANTONY
AGED 84 YEARS
W/O LATE ANTHONY, THAIPARAMBIL HOUSE,
CHAYAM, CHITTUVEETUMURI, VITHURA P.O,
THOLIKODE VILLAGE, THIRUVANANTHAPURAM,
PIN - 695551
BY ADVS.
PUBLIC PROSECUTOR
Sreelal N.Warriar
NANDA SURENDRAN(K/1367/2020)
ALKA WARRIAR(K/001332/2023)
MATHEW J.ELENJICKAL(K/1837/2019)
POOJA SUNIL(K/001191/2022)
JINU TREESA JOSE(K/286/2012)
MARTIN SIVI(K/001343/2022)
AKHIL SHAJI(K/915/2023)

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SRI NOUSHAD K.A. (SR PP)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC No.5117 of 2023

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O R D E R

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The petitioner is the second accused in Crime No.437 of 2023 of Vithura Police Station, Thiruvananthapuram, alleging commission of offences under Sections 120-A, 120-B, 403, 405, 406, 409, 415, 416, 417, 418, 420, 463, 464 and 468 r/w 34 of the Indian Penal Code. After investigation, a final report was filed and the matter is now pending as C.C.No.409 of 2023 on the file of the Judicial First Class Magistrate’s Court (Forest Offence), Nedumangad where, charges have been framed for commission of offences under Sections 406, 418 and 420 r/w 34 of the Indian Penal Code. The crime came to be registered on the complaint of the second respondent, who is the 84 year old mother of the first accused in the case and the grand mother of the petitioner/second accused.

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The father of the first accused/husband of the second respondent passed away on 11.12.2018. He had executed a will bequeathing immovable properties to the first accused and to the another sibling of the first accused. The deceased also held fixed deposits in banks where, the nominee

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Crl.MC No.5117 of 2023

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was the first accused in C.C.No.409 of 2023 (first accused in C.C.No.409 of 2023 is not a party to this proceedings).

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The allegation is that, the first accused

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withdrew the money on the strength of the nomination and refused to share it with the second respondent who is also entitled to a share of the money. The allegation led to registration of Crime No.437 of 2023 of Vithura Police Station, Thiruvananthapuram, which as stated above is now pending as C.C.No.409 of 2023 on the file of the Judicial First Class Magistrate’s Court (Forest Offence), Nedumangad. According to the defacto complainant/second respondent, the first accused has surreptitiously withdrawn the money maintained in fixed deposits by the deceased to the prejudice of the other legal heirs.

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The learned counsel appearing for the petitioner would submit that, even assuming that all the allegations are true, there is nothing in the complaint which would suggest that the petitioner was, in any manner, involved in the matter. It is submitted that the petitioner has been unnecessarily roped in as the accused in the dispute between the second respondent and first accused only on account of the fact that the petitioner is

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Crl.MC No.5117 of 2023

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the son of the first accused. It is submitted that the petitioner had nothing to do with the transactions in the bank and therefore, the proceedings against the petitioner may be quashed in exercise of the jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure.

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Heard the learned Public Prosecutor and the

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learned counsel appearing for the second respondent as well.

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The learned Public Prosecutor and the learned

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counsel appearing for the second respondent would refer to Annexure-II private complaint preferred by the second respondent to contend that there are clear allegations against all the accused in the case to attract the offences alleged against them. It is submitted that the petitioner was also very much part of the conspiracy to defraud the second respondent in connivance with the first accused. It is submitted that the question as to whether the petitioner had a direct role in withdrawing the money from the bank is a matter for trial and is not a matter to be considered by this Court under Section 482 of the Code of Criminal Procedure is the submission.

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Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned

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Crl.MC No.5117 of 2023

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counsel appearing for the second respondent, I am of the view that the petitioner is entitled to succeed. The crime came to be registered following a private complaint preferred by the second respondent, which was referred for investigation under Section 156(3) of the Code of Criminal Procedure. Annexure-II is the complaint filed by the second respondent before the Judicial First Class Magistrate’s Court (Forest Offence), Nedumangad. Averments in Paragraphs 1 to 9 in Annexure-II complaint are extracted below;

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“1. The petitioner is an 84 year old senior citizen and is the wife of Late Antony M C who had passed away on 11/ 12/2018 and is represented by her Power of Attorney Holder. The 1^st and 2nd counter petitioners herein are the daughter and grandson respectively of the petitioner and her late husband Antony M C. The 3^rd counter petitioner was the branch manager of SBI (Formerly SBT) Vithura Branch during 2018-2021 period. The petitioner and her late husband have four more children namely Sheeba Antony, Sheela Antony, Sherly Antony and Shibi Antony.

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The Petitioner's late husband Antony M C had executed a Will dated 29.08.2018 registered with Vithura SRO and entered in Book III, Volume 65 and in pages 87 to 91 and numbered as 55/III/18 and in furtherance the petitioner and her late husband had also executed an another unregistered Will dated 01/09/2018 which contains the conditions for the previously registered will and the same was executed as a corollary to the 1^st Will. The execution of

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both the Wills are known to their children and copies had also been given to them.

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As per the 2nd Will dated 01/09/2018, there was specific conditions set forth in the Will regarding the fixed deposits belonging to the petitioner and her late husband. Further the interest from the FD's were mandated and directed by the petitioner and her husband at the time of deposit, to be transferred to the petitioner's SB account in the same branch. So after the death of the petitioner's husband, she had given a letter in writing to the 3^rd petitioner herein who was the then branch manager of SBI (Formerly SBT) Vithura wherein the said FD's were made clearly stating that none of the FD's should be released on maturity or otherwise to any of the children even if they have been named as nominees in each of the FD's.

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But of late, on verification the petitioner found out that the FD’s belonging to her late husband in which the 1^st counter petitioner Sheeja Antony M C was named as nominee has been released to her from the period of 2019 March to 2022 January as per the date of maturity of a FD and thereby has totally release an amount of Rs 19,24,879/from the said FD's as detailed herein;

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Sl No.	FD NOS.	DATE OF MATURITY RELEASE	AMOUNT	RELEASE AMOUNT
i.	67139254622	31/03/19	Rs.5,00,000/-	Rs.4,95,769/-
ii.	67139254688	31/03/19	Rs.4,00,000/-	Rs.3,96,597/-
iii.	67132673901	26/04/19	Rs.1,02,244/-	Rs.1,20,078/-
iv	67237234137	05/08/19	Rs.80,947/-	Rs.93,265/-
v	672367667822	11/07/20	Rs.5,00,000/-	Rs.4,93,946/-
vi	67198705836	16/07/21	Rs.1,01,698/-	Rs.1,01,808/-

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Crl.MC No.5117 of 2023

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vii	67257081559	19/10/21	Rs.93,076/-	Rs.92,173/-
viii	67139933227	23/12/21	Rs.1,11,009/-	Rs.1,31,243/-
			TOTAL RELEASED AMOUNT	Rs.19,24,879/-

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These transactions was done by the counter petitioners behind the back of the petitioner even though she had specifically given written instructions not to release any of the FD's to any of the children even if they are named nominees therein. It is submitted that as per the mandated and legally prescribed formalities and paper work of SBI (formerly SBT) which is produced along with this petition, it can be clearly seen that for releasing an FD amount on maturity of a deceased person, the death certificate, legal heirship certificate, Will if any and the consent from all the legal heirs to release the said FD amount in favour of the nominee or any other legal heir is mandatory. But in the present case, none of this mandate, paper work or procedure of the bank was followed and on the other hand, the FD amounts were released to the 1^st Counter petitioner by the 3^rd counter petitioner who was the then manager by passing and ignoring all the aforesaid mandatory legal paper work and procedures. The petitioner genuinely suspects that the signature of the petitioner and other legal heirs has been forged in the aforesaid mandatory paper work in the bank and impersonation of the petitioner and other legal heirs has been made to illegally release the said FD's to the 1^st counter petitioner. Even the legal heirship certificate which is mandatory has not been furnished at the time of release of the FD amount since till date the legal heirship certificate of late Antony M C has not been applied for or procured by any of the legal heirs including the petitioner and the 1st counter petitioner. Further the letter given in

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Crl.MC No.5117 of 2023

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writing by the petitioner not to release the FD's to any of the children was so ignored while releasing the FD's to the 1^st counter petitioner.

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It is submitted that the counter petitioners had full knowledge about execution of the aforesaid Will and the written instruction given by the petitioner not to release the FD's to any of the children but even inspite of that had done the said illegal act. Further the said release of the FD's to the nominee is against the Law laid down by the Honourable Supreme Court of India that "a nominee in an FD is only a trustee of the other legal heirs and he/she cannot claim or release the amount in the FD in his or her name. The counter petitioners have full knowledge about the said Law also but in blatant defiance of the said Law laid down by the Honourable Supreme Court has released the FD's.

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It is submitted that the counter petitioners especially the 3^rd counter petitioner bank manager cannot claim ignorance of the Law in this regard and even if such a claim is made, it is common knowledge and basic legal findamental principle that "Ignorantia Juris Non Excusat" which means ignorance of Law is not excusable. So such a claim or defense cannot be put up by the counter petitioners. Further as aforesubmitted, SBI has mandatory paper work for release of the FD amount of a deceased person to a nominee or legal heir and no such paper work has been done while releasing the aforesaid FD amounts to the 1^st counter petitioner by the 3^rd counter petitioner. No mandatory consent was obtained from the other legal heirs including the petitioner for the release of the FD amounts to the 1^st counter petitioner which makes the release of the FD amounts to the 1^st counter petitioner per se illegal and a criminal offence. The petitioner genuinely suspects that the signature of the

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Crl.MC No.5117 of 2023

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petitioner and other legal heirs has been forged and impersonation of the petitioner and other legal heirs has also been done while releasing the said FD's to the 1^st counter petitioner.

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It is submitted that the counter petitioners have committed criminal conspiracy in furtherance of their common interest and with dishonest intention and with the full knowledge and intention that they are doing illegal act by which illegal loss would be caused to the other legal heirs and illegal gain would be caused to the counter petitioners, have done the said illegal act in direct confrontation of the Law and mandated procedures and legal paper work in this regard. Further the petitioner genuinely suspects that the signatures of the petitioner and other legal heirs has been forged and impersonation of the petitioner and other legal heirs has also been done while releasing the said FD's to the 1^st counter petitioner. Hence the counter petitioners are liable to be charged for the said offences.

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The counter petitioners had purposefully with full knowledge that they are doing an illegal act and with dishonest intention to make illegal gains for themselves and to make illegal loss to the petitioner and the other legal heirs of Late Antony M C in whose name the FD's were drawn and without the consent, sanction, authority or permission from the other legal heirs had released amounts from the said FD's and thereby had cheated the petitioner and other legal heirs to make illegal monetary gains to themselves and illegal loss to the petitioner and the other legal heirs. The counter petitioners had the dishonest intention to heat the petitioner and the other legal heirs from day one and it is in furtherance of this intention that

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Crl.MC No.5117 of 2023

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they had even though it was specifically instructed by the petitioners to the 3^rd counter petitioner not to release the FD's to any of the children including the 1^st counter petitioner, had released the said amounts in a series of transaction as evident from the afore submitted details. The counter petitioners had dishonestly misappropriated the FD amounts in the name of Late Antony M C over which all of his legal heirs have equal right and claim and hence had committed criminal breach of trust. The petitioner genuinely suspects that the counter petitioners have impersonated the petitioner and other legal heirs and forged their signatures to release the said FD's to the 1" counter petitioner. Further as evident from the aforesubmitted facts, the counter petitioners have made illegal monetary gains for themselves and illegal monetary loss to the petitioner and the other legal heirs and have thus committed the offence of cheating. The counter petitioner/accused had made illegal monetary gain of Rs 19,24,879/-. Moreover the said act was done by the accused in furtherance of their common intention and thereby is liable for the offence U/s 34 IPC. So in the light of the afore submitted facts and documentary proof, it is crystal clear that the counter petitioner/accused have committed the offence u/s 120-A, 120- B, 403, 405, 406, 409, 415, 416, 417, 418, 420, 463, 464, 468 and 34 of IPC and hence is liable to be punished for the said offences.”

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A reading of the complaint in its entirety does not indicate that there is a whisper against the petitioner who is arrayed as the second accused in the complaint. The entire allegations appear to be against the first accused (mother of the petitioner) and against the Bank Manager who was arrayed as the third

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accused in the case. On the filing of the final report, the third accused in the complaint has been removed from the array of accused and he is no longer an accused in the case. Therefore, I am of the view that, since even the complaint filed by the second respondent does not contain any allegation against the petitioner/second accused, the proceedings against the petitioner can be quashed as there appears to be no material upon which, the petitioner has been arrayed as the second accused in the case. Annexure-III final report also does not contain any allegation against the petitioner/second accused and the only allegation is that the first accused had used the money withdrawn from the bank towards the marriage expenses of the petitioner/second accused. Therefore, I am of the view that this is a fit case where, the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure can be invoked to quash the proceedings against the petitioner.

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Accordingly, this Crl.M.C. is allowed and all further proceedings against the petitioner/second accused in C.C.No.409 of 2023 on the file of the Judicial First Class Magistrate’s Court (Forest Offence), Nedumangad will stand quashed. It is made clear that no observation in this order shall be treated as a

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Crl.MC No.5117 of 2023

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finding regarding the case against the first accused in the

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case.

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Sd/-

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GOPINATH P., JUDGE

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rkj

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Crl.MC No.5117 of 2023

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APPENDIX OF CRL.MC 5117/2023

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`PETITIONER ANNEX`	`URES`
`Annexure-I`	`CERTIFIED COPY OF THE FIR IN CRIME NO.` `437/2023 OF VIDURA POLICE STATION,` `THIRUVANANTHAPURAM`
`Annexure-II`	`TRUE COPY OF THE PRIVATE COMPLAINT FILED` `BY THE 2ND RESPONDENT BEFORE THE` `HONOURABLE JUDICIAL FIRST CLASS`
	`MAGISTRATE COURT (F.O), NEDUMANGADU`
`Annexure-III`	`TRUE COPY OF THE FINAL REPORT DATED` `23.05.2023 IN CRIME NO. 437/2023 OF` `VITHURA POLICE STATION,` `THIRUVANANTHAPURAM`
`Annexure-IV`	`TRUE COPY OF THE WILL DATED 29.08.2018` `EXECUTED BY THE GRAND-FATHER OF THE` `PETITIONER REGISTERED BEFORE VIDHURA` `S.R.O BEARING NO.55/III/2018.`
`Annexure-V`	`TRUE COPY OF THE POSSESSION CERTIFICATE` `ISSUED TO SHEEJA ANTONY(1ST ACCUSED)` `DATED 16.01.2020`
`Annexure-VI`	`TRUE COPY OF THE POSSESSION CERTIFICATE` `ISSUED TO SHIBI ANTONY(POWER OF ATTORNEY` `HOLDER OF THE DEFACTO COMPLAINANT) DATED` `16.01.2020 BY THE THOLIKODE VILLAGE` `OFFICE.`
`Annexure 7`	`TRUE COPY OF THE BANK DOCUMENTS OF MRS.` `SHEEJA ANTONY FROM 1/12/2021 TO` `31/12/2021`
`Annexure 8`	`TRUE COPY OF THE VERIFICATION MEMO` `RECEIVED BY THE PETITIONER FOR THE POST` `OF FIREMEN DATED 17.08.2023`
`Annexure 9`	`TRUE COPY OF THE SERIES THE COPY OF RANK` `LIST NO. 227/2023/DOT OF POLICE CONSTABLE` `IN WHICH THE PETITIONER IS ENLISTED AND` `ITS ADVICE MEMO TO THE PETITIONER AND` `RELATED DOCUMENTS DATED 13.04.2023`
`Annexure 10`	`THE TRUE COPY OF MAIN RANK LIST NO.` `530/2023/DOT OF CIVIL EXCISE OFFICER` `TRAINEE (MALE) DATED 06.07.2023`

Sooraj Babu v. State of Kerala

Case brief

What is this about?

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Sooraj Babu v. State of Kerala

Case brief

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