Kerala High Court
Sivaramakrishnan @ S.R.Krishnan vs State Of Kerala on 10 March, 2020
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
Crl.MC.No.5025 OF 2014
AGAINST THE ORDER IN CRL.R.P.NO.62/2011 DATED 14-07-2014 OF THE
COURT OF SESSION, PALAKKAD
AGAINST THE ORDER IN C.C.NO.171/2006 DATED 12-08-2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, PALAKKAD
PETITIONER/REVISION PETITIONER/ACCUSED NO.4:
SIVARAMAKRISHNAN @ S.R.KRISHNAN
AGED 61 YEARS
S/O.K.K.BHASKARA VAIDYAR, 7/318, THAREKKAD,
PALAKKAD-1.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENTS/RESPONDENTS/NON-PARTY & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 PARASU
S/O.APPUKUTTA MOOTHAN, 33/174, SREERAM STREET,
KARNAKAI NAGAR, VADDAKKANTHARA P.O.,
PALAKKAD DISTRICT-678506.
R1 BY SRI B.JAYASURYA, SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.5025 OF 2014 2
ORDER
Dated this the 10th day of March, 2020 In the petition on hand, accused No.4 has approached this Court seeking to quash Annexure-B and C orders and all further proceedings initiated pursuant thereto in C.C.No.171 of 2006 pending on the files of Judicial First Class Magistrate Court-II, Palakkad.
2. C.C.No.171 of 2006 is a prosecution initiated at the instance of the 2nd respondent alleging that the petitioner alongwith 3 other accused have committed offences punishable under Sections 120B, 193, 463, 464, 468 and 380 read with Section 34 of Indian Penal Code. A private complaint was lodged by the 2nd respondent herein, before Judicial First Class Magistrate Court-II, Palakkad, copy of which is appended to this petition on hand as Annexure-A. The averments in the private complaint are that respondent No.2 in the case on hand and accused No.2, were together running a partnership concern namely 'Vishnuprasad Industries' at Palakkad. The concern went in loss and following that accused Nos.3 and 4 together were permitted to conduct the said concern on the assurance Crl.MC.No.5025 OF 2014 3 that they would be able to run it properly and to take benefit out of it. They also failed in that attempt. Thereafter, respondent No.2 herein filed a private complaint before Judicial First Class Magistrate Court-II, Palakkad raising allegations against accused that they have committed offences as aforesaid. It is further alleged in Annexure A complaint that accused had obtained blank signed papers, a blank stamped paper worth Rs.50/- and blank cheque leaves from 2nd respondent. It is also contended by the 2nd respondent that after making use of the said documents, cases were got registered against him by the accused. The Magistrate took cognizance of Annexure-A complaint and proceeded to frame charge against the accused vide Annexure-B order. The Magistrate while venturing to frame charge has found on the basis of an allegation in the complaint that cheque leaves have been stolen and therefore found that the offence under Section Section 468 IPC will not be attracted. Accordingly, it omitted to frame charge for an offence under Section 468 IPC against the accused. Accordingly, the charge framed was confined only to an offence punishable under Section 406 read with Section 34 IPC. The Magistrate has also found materials inadequate to Crl.MC.No.5025 OF 2014 4 take a view that the 2nd accused has committed an offence of theft and accordingly, discharged him by the very same order. Against the above order the 4th accused went in revision before Court of Sessions, Palakkad. The said court has considered the question, whether the order passed by the Magistrate was illegal or perverse and came to the conclusion that illegality or perversity is not involved. Accordingly, the order of the Magistrate was confirmed in the revision. Aggrieved thereby, the petitioner has approached this Court seeking to quash Annexure-B and C orders passed by the Magistrate as well as by the Court of Sessions, in exercise of jurisdiction under Section 482 Cr.P.C..
3. As per Annexure-B order passed by Judicial First Class Magistrate Court-II, Palakkad, a charge was framed against the petitioner and 3rd accused only for an offence punishable under Section 406 r/w Section 34 IPC. Raising contention that charge under Section 406 IPC will not sustain, revision was filed before the Court of Sessions, Palakkad. Therefore, the question sought to be considered is whether an offence under Section 406 IPC would attract against the petitioner or not. But the revisional court has dealt only with Crl.MC.No.5025 OF 2014 5 the legality of the order discharging the accused under Section 468 IPC and therefore, while passing Annexure-C order confirmed the finding of the Magistrate that the offence under Section 468 IPC will not be attracted against the accused.
4. Sri.Liju M.P, the learned counsel for the petitioner has pointed out that in Annexure-A complaint no specific allegation is raised against the petitioner that he has committed breach of trust regarding the cheque, which is the subject matter of the case. He has invited this Court's attention to Paragraph 2 of Annexure-A complaint wherein allegations were raised to the effect that signed cheque leaves have been stolen from the custody of the defacto complainant and those have been misused for the purpose of launching the prosecution. The contention of the learned counsel was that the basic ingredients to be incorporated in a complaint alleging commission of offence under Section 406 IPC was 'entrustment' of cheque leaves and misappropriation of those in breach of trust. The learned Public Prosecutor has fairly conceded to that aspect.
5. In the context, criminal breach of trust as defined under Section 405 IPC requires to be extracted hereunder for clarity.
Crl.MC.No.5025 OF 2014 6
"405: Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation (1)- A person, being an employer (of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount for the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.- A person, being an employer, who deducts the employees' contribution form the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund, in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid."
Crl.MC.No.5025 OF 2014 7From the extract above, it is convinced that without the ingredient 'entrustment' is there, the offence under Section 405 IPC will not be attracted. Only when a property has been entrusted in some manner and the same has been misappropriated or converted by the person who has taken that in trust, dishonestly for his own use, then alone the offence under Section 405 IPC will be attracted.
6. As rightly pointed out by the learned counsel for the petitioner Annexure-A complaint is totally silent regarding a plea from the 2nd respondent that cheque leaves have been entrusted to the petitioner. The sole allegation raised in the complaint was that cheque leaves have been thieved from the custody of the 2nd respondent and those have been misused for the purpose of launching the prosecution. If that be the case, the offence under Section 405 IPC will not be attracted. In the context, the Judicial First Class Magistrate Court-II, Palakkad has totally erred in framing charge against the petitioner for an offence under Section 406 IPC. The revisional court has also gone wrong while passing Annexure-C order confirming the same without properly delving upon attraction of the ingredients of the offence under Section 405 IPC from the Crl.MC.No.5025 OF 2014 8 allegations in Annexure-A complaint. In the above circumstances both orders deserve interference as called for.
In the result, Crl.M.C is allowed. Annexures B and C orders are quashed as against the petitioner. In the impact, all proceedings initiated by Judicial First Class Magistrate Court-II Palakkad in CC No.171/2006 and pending on its file are quashed forthwith as against the petitioner. The petitioner is discharged for the offence under Section 406 IPC for which he stands charged with.
Sd/-
MARY JOSEPH NAB/ttb JUDGE Crl.MC.No.5025 OF 2014 9 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A CERTIFIED COPY OF THE COMPLAINT MADE IN THE JUDICIAL MAGISTRATE COURT, PALAKKAD.
ANNEXURE B CERTIFIED COPY OF THE ORDER DATED 12/8/2011 PASSED IN CC NO.171/2006 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, PALAKKAD.
ANNEXURE C TRUE COPY OF THE ORDER DATED 14/7/2014 PASSED IN CRL.RP NO.62/2011 ON THE FILE OF SESSIONS COURT, PALAKKAD.
RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY// P A TO JUDGE