Kerala High Court
Baselious Thomas I vs Paul Varghese
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936
Crl.MC.No. 756 of 2013 ()
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CC.NO. 1512/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY
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PETITIONER/ACCUSED NO.1 :
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BASELIOUS THOMAS I,
CATHOLICOSE, AGED 84,
S/O. MATHAI
CATHOLICOS AND METROPOLITAN TRUSTEE
PATRIARCHAL CENTRE
PUTHENERNY, ERNAKULAM.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.R.ANIL
SRI. M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.VARGHESE J. PUNNACHALIL
RESPONDENTS/COMPLAINANT & STATE :
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1. PAUL VARGHESE,
AGED 54, S/O.VARGHESE,
KURUVICHIRANGARA HOUSE, KAITHAKKADU
PAZHAMTHOTTAM, PATTIMATTAM P.O.,
PATTIMATTAM VILLAGE, ERNAKULAM.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS. SRI.BABU KARUKAPADATH
SRI.SABU THOZHUPPADAN
R2 BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-06-2014,
ALONG WITH CRMC. 5292/2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Mn
...2/-
Crl.MC.No. 756 of 2013 ()
APPENDIX
PETITIONERS' ANNEXURES :
ANNEXURE A : CERTIFIED COPY OF THE COMPLAINT FILED BEFORE THE
JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY
DATED 25-8-12.
ANNEXURE B COPY OF THE DECISION WAS COMMUNICATED TO THE FIRST
RESPONDENT BY THE PETITIONER AS PER HIS KALPANA
DATED 26-6-2012.
ANNEXURE B(1) COPY OF THE COMMUNICATION DATED 26-6-2012.
ANNEXURE C COPY OF THE DECISION OF THE PATRIARCH OF ANTIOCH AND
FORWARDED TO THE 1ST RESPONDENT ON 4-8-2012.
ANNEXURE D COPY OF THE DECISION WAS COMMUNICATED TO PW2 BY
THE PETITIONER AS PER KALPANA DATED 26-6-2012.
ANNEXURE D1 COPY OF LETTER DATED 26-6-2012.
ANNEXURE E COPY OF THE KALPANA DATED 4-8-2012.
ANNEXURE F COPY OF THE CERTIFICATE ISSUED BY THE SENIOR
MANAGER OF PUTHENCRUZ BRANCH OF FEDERAL BANK.
ANNEXURE G CERTIFIED COPY OF THE SWORN STATEMENT OF THE
COMPLAINANT.
ANNEXURE H CERTIFIED COPY OF THE SWORN STATEMENT OF THE 2ND
WITNESS MANOJ KOKKAD.
(Contd...)
Crl.MC.No. 756 of 2013 ()
ANNEXURE I CERTIFED COPY OF THE SWORN STATEMENT OF THE 3RD
WITNESS VARGHESE BABU.
RESPONDENT'S ANNEXURES :
ANNEXURE R1 : COPY OF PAGE NOS. 39 TO 45 OF BIOGRAPHY OF PETITIONER
NAMELY 'VISWASA VELICHAVUMAYI VISUDHIYUDE PATHAYIL.
ANNEXURE R2 : COPY OF CONSTITUTION OF JACOBITE SYRIAN CHRISTIAN
CHURCH.
ANNEXURE R3 : COPY OF ELECTION NOTIFICATION NO. JSCA-1/12 DATED
17/7/2012 ISSUED BY THE PETITIONER.
//TRUE COPY//
P.A. TO JUDGE
Mn
P.D. RAJAN, J.
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Crl.M.C.Nos.756 & 5292 of 2013
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Dated this the 25th day of June, 2014
O R D E R
These petitions are filed under Section 482 of the Cr.P.C. to quash Annexure-A complaint C.C.1512/2012 and Annxure J complaint C.C.No.1008/13 pending before the Judicial First Class Magistrate Court, Kolenchery by invoking inherent jurisdiction. Both cases are filed by the first respondent herein.
2. The first petitioner (in both cases) is the first accused in both cases and the second petitioner herein is the third accused in C.C. No.1008/2013. The first petitioner was consecrated as Catholicose in the year 2002 who is the spiritual head of thousands of believers and the head of the Jacobite Syrian Church in India. The first respondent was the "Media Gospel Spokesman of the Church" and one Manoj Kokkad was the member of the managing committee of the Sabha and the third witness in the complaint. They were removed from the sabha on 26.06.2012 which was Crl.M.C.Nos.756 & 5292 of 2013 -2- confirmed by His Highness the Patriarch of Antioch on 04.08.2012. After removal of the first respondent and the witness they become more enemical towards the petitioners and they started making false allegations against the petitioners by filing cases in various courts. The allegations in the complaint relate to election, budgets, accounts, irregularities in the administration, failure to convene meeting etc. The allegations made in Annexures A and J are false and only to harass the petitioners and if trial is proceeded it will cause irreparable injury and gross hardship to them. Hence, the petitioners pray to invoke the inherent jurisdiction.
3. In Crl.M.C. No.756/2013 the allegation of the first respondent/complainant is that he is the member of the Jacobite Syrian Christian Church within the Angamaly Diocese and the parishner of St. Mary's Jacobite Syrian Church, Pazhanthottam. The assets of the diocese are administered as per the constitution. The first accused is the Metropolitan Trustee and the third accused is the Sabha Crl.M.C.Nos.756 & 5292 of 2013 -3- Secretary. They misappropriated the trust amount in violation of the law prescribed in the constitution. By misappropriating the amount the first accused purchased a Benz car bearing registration No.KL40F-7544 by spending Rs.80 lakhs and thereby committed the offence punishable under Sections 406, 409 of IPC r/w 34 IPC. The learned magistrate after examination of the defacto complainant and his witness took cognizance of the offence under Section 406 IPC alone and process was issued against the accused. In such a situation the petitioner approached this court to invoke inherent jurisdiction.
4. In Crl.M.C.No.5292/2013 the first respondent/ complainant's allegation is that the first accused on 22.7.2008 purchased a Mercedes Benz car with registration No.KL-40 B 2322, on 6.1.2010, a Toyota - Fortuner Sports Utility vehicle with registration No.KL-40 C 5769, on 18.6.2010, a Force Traveler ambulance with registration No.KL-40 D 1129 and on 31.1.2011 a Toyota Innova car with registration No.KL-40 D 9081, in his own name Crl.M.C.Nos.756 & 5292 of 2013 -4- availing loan from the Federal Bank, Puthencruz and by utilising the funds of the church and thereby committed offence punishable under Sections 406, 409 r/w 34 IPC. The Judicial First Class Magistrate Court, Kolenchery examined the defacto complainant and one witness and took cognizance of the offence under Section 406 r/w. 34 IPC alone and issued process. Hence this petition.
5. The learned counsel appearing for the petitioners contended that prima facie no materials are produced before the lower court to proceed under Section 406 r/w. 34 IPC against the petitioners. The first petitioner is the Metropolitan Trustee and Catholicose of the Jacobite Syrian Christian Church. The church is administered as per the constitution enacted as per Annexure R2 in Crl.M.C.5292/2013. The first petitioner was consecrated initially as the Metropolitan of the Angamaly Diocese in the year 1974. Subsequently after the death of the then Catholicose the first petitioner was unanimously elected and consecrated as the Catholicose. The first respondent and Crl.M.C.Nos.756 & 5292 of 2013 -5- witness were ousted from the sabha earlier and they are raising false allegations against the petitioners and other trustees. The first petitioner had purchased all the vehicles in his personal capacity and there is no misappropriation of the funds of the trust. Hence the petitioners rely on the decision of the Apex Court reported in State of Haryana v. Bhajanlal [1992 SCC (Crl) 426].
6. The learned counsel appearing for the first respondent strongly resisted the above contention and contended that he is the member of the Jacobite Syrian church. As per the constitution, the total income and expenditure of the year shall be prepared through a budget and if any amount excess than the budget amount is needed, it can be spent in that year only after obtaining the sanction of the working committee. All the vehicles are purchased by utilising the funds of the trust. Therefore, this is a fit case to direct proper enquiry and that there is no necessity to interfere in the prima facie proceedings initiated by the lower court.
Crl.M.C.Nos.756 & 5292 of 2013 -6-
7. Before adverting to the rival contentions put forwarded by the learned counsel, I may extract Section 405 of the IPC which explains the criminal breach of trust.
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".
Therefore, it must be proved that the accused must be entrusted with the property in respect of which the offence is alleged to have been committed and he must have dishonestly misappropriated that property in violation of that trust. Therefore, two ingredients such as the entrustment of the property and misappropriation of property are the necessary ingredients. Therefore, misappropriation of funds detriment to the person entrusted is the basic ingredient to attract Section 405 IPC. In this context I have considered the averments in Annexure-A in Crl.M.C.No.756/2013 and Annexure-J in Crl.M.C. Crl.M.C.Nos.756 & 5292 of 2013 -7- No. 5292/13. In both cases there is no allegation and it is also not mentioned in both cases as to how much amount was entrusted with the trust and how much amount was misappropriated dishonestly by the petitioners. Therefore entrustment of the property and misappropriation of that property is very relevant for attracting the offence under Section 406 of the IPC. It is the case of the first petitioner that he availed a loan from the Federal Bank, Puthencruz and he purchased those vehicles. No scrap of paper has been produced before this Court or before the trial court, to show the misappropriation, other than the oral statement given in the lower court on the basis of Annexure-A and Annexure J. The Apex Court in Sadhupati Nageswara Rao v. State of Andhra Pradesh [AIR 2012 SC 3242] explained the ingredients for attracting Section 406 IPC as follows:
"7. In order to appreciate the above contentions, it is useful to refer the definition and punishment of criminal breach of trust and related provision provide under Sections 405, 406 and 409, IPC which read as under:-
Crl.M.C.Nos.756 & 5292 of 2013 -8- "405. Criminal breach of trust.- x x x x x x x x
406. Punishment for criminal breach of trust.- x x x x x x
409. Criminal breach of trust by public servant, or by banker, merchant or agent.- x x x x x x x x In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409, IPC, two ingredients are to be proved:
namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405, IPC. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it."
The first petitioner contended that he purchased the vehicles by using his amount which was received on several occasions through the believers of the church in connection with various functions and the first respondent cannot make such averment that he misappropriated the trust amount in the absence of specific documentary evidence. Analysing the facts in Annexure-A and Crl.M.C.Nos.756 & 5292 of 2013 -9- Annexure-J, I am of the view that a prima facie case is not made out against the petitioners and it is liable to be quashed by invoking inherent jurisdiction.
8. Inherent jurisdiction u/s.482 of the Cr.P.C. can be invoked only for the three grounds mentioned therein, i.e. to make such orders which are necessary to "give effect to any order" under this code or to prevent "abuse of the process" of any court or to secure "the ends of justice". The Apex Court in State of Haryana v. Bhajan Lal [1992 SCC (Cri) 426] explained the parameters for invoking inherent jurisdiction.
9. Therefore, when a prima facie case is not made out, in Annexures A and J, those petitions against the petitioners are liable to be quashed by invoking inherent jurisdiction. The second respondent also contended that civil litigations are pending with regard to misappropriation of the trust amount. Therefore, I am of the opinion that after the disposal of the civil dispute, if it is found that any misappropriation was revealed in the trust property, the Crl.M.C.Nos.756 & 5292 of 2013 -10- first respondent is at liberty to approach the proper forum according to the final decision of the civil court. There is no merit in the contention put forwarded by the first respondent and I allow Crl.M.C.Nos.756 & 5292 of 2013.
In the result, Annexure A and Annexure J in both cases (Crl.M.C.Nos.756 & 5292/2013) are quashed by invoking inherent jurisdiction under Section 482 of the Cr.P.C.
Sd/-
P.D. RAJAN, JUDGE //True copy// P.A. TO JUDGE shg/