Kerala High Court
Ashraf Kancheriyil vs The State Of Kerala on 18 March, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 832 of 2011()
1. ASHRAF KANCHERIYIL, S/O.ALI,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/03/2011
O R D E R
THOMAS P JOSEPH, J.
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Crl.M.C.No.832 of 2011
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Dated this 18th day of March, 2011
ORDER
Petitioner is accused in C.C.No.240 of 2003 of the Court of learned Judicial First Class Magistrate, Ponnani for offences punishable under Sec.420 r/w Sec.34 of the Indian Penal Code. That case arose from Crime No.90 of 2003 of Ponnani Police Station. Charge is that on a promise to arrange visa petitioner and others collected `.1,50,000/- and passport from PWs.1 to 3. Accused 1 and 2 faced trial and were acquitted by Annexure-A1, judgment dated November 29, 2007. Petitioner seeks to quash proceeding against him in view of Annexure-A1, judgment acquitting accused 1 and 2. It is submitted by learned counsel that the judgment destroys the substratum of the case of prosecution and hence in the light of the decision in Moosa Vs. Sub Inspector ((2006)1 KLT 552) prosecution against petitioner is liable to be quashed.
2. Since petitioner was not available for trial when accused 1 and 2 were tried the case against him was split up and refiled as C.C.No.402 of 2007. I have heard learned counsel for petitioner and the learned Public Prosecutor and gone through Crl.M.C.No.832 of 2011 -: 2 :- Annexure-A1, judgment. It is seen from paragraph 12 of the judgment that learned Magistrate considered evidence of the de facto complainant and his witnesses examined as PWs.1 to 4 and found that their version did not tally with the allegations in the complaint (learned counsel submits that de facto complainant preferred a complaint to the police and based on that complaint of police registered the case). It is stated in paragraph 12 of the judgment that presence of PW4 at the time of the alleged incident cannot be believed since there is no mention in the complaint about his presence. The Court also found that evidence of PWs.1 to 3 do not tally as regards alleged time of payment and that their version that they paid the amount without any document to evidence payment cannot be accepted. The further fact which the learned Magistrate has taken into consideration is that though the passports were allegedly given to the petitioner and other accused, no attempt was made to recover the same. In short, learned Magistrate was not inclined to believe prosecution case regarding the alleged inducement, payment of money and delivery of passport. It is accordingly that accused 1 and 2 were acquitted.
Crl.M.C.No.832 of 2011 -: 3 :-
3. In paragraph 50 of the decision referred above it is stated that where the substratum of prosecution case is shattered by the previous judgment, that could be take into account while considering request to quash proceeding. In the case on hand I stated that substratum of prosecution case is shattered. Hence I am inclined to allow the petition.
Resultantly this petition is allowed and proceeding against petitioner in C.C.No.240 of 2003 of the Court of learned Judicial First Class Magistrate, Ponnani is quashed.
(THOMAS P JOSEPH, JUDGE) Sbna/-