Kerala High Court
Rev.Fr.K.P. Xavier vs State Of Kerala
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937
Crl.MC.No. 1844 of 2015 ()
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CC.NO. 321/2009 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT,
THIRUVANANTHAPURAM
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PETITIONER/2ND ACCUSED:
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REV.FR.K.P. XAVIER,
ASSISTANT SUPERIOR GENERAL,
CARMALARAM POST, BANGALORE -35.
BY ADV. SRI.M.SREEKUMAR
RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. JOHNSON V.K., S/O. KUNJUVAREETHU,
EMPLOYED AS HELPER FOR THE PRIESTS,
CARMAL MONASTRY CHURCH, EDAPAZHANJI,
PANGODE, THIRUVANANTHAPURAM-695 001
R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 21-01-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sts
CRL.M.C.NO.1844/2015
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX A CERTIFIED COPY OF PRIVATE COMPLAINT NO.4251/08 ON THE FILE
OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,
THIRUVANANTHAPURAM DATED 25/8/08.
ANNEX B COPY OF THE CHEQUE PRODUCED ALONG WITH THE COMPLAINT.
ANNEX C COPY OF THE CHEQUE RETURN MEMO PRODUCED ALONG WITH THE
COMPLAINT.
ANNEX D COPY OF THE LAWYER'S NOTICE DATED 29/10/07.
ANNEX E COPY OF THE ORDER OF THIS HON'BLE COURT IN
CRL.M.C.NO.4778/10 DATED 23/10/2013
ANNEX F CERTIFIED COPY OF DEPOSITION OF PW1 IN CC 321/09
ANNEX G CERTIFIED COPY OF DEPOSITION OF PW2 IN CC 321/09
ANNEX H CERTIFIED COPY OF THE ORDER IN CC NO.321/09 DATED 7/11/2014
OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,
THIRUVANANTHAPURAM.
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
B. KEMAL PASHA, J.
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Crl.M.C. No.1844 of 2015
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Dated this the 21st day of January, 2016
O R D E R
~ ~ ~ ~ ~ ~ Heard learned counsel for the petitioner and learned counsel for the 2nd respondent.
2. What is under challenge is Annexure-H order passed by the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram in CC No.321/2009 under Section 244 Cr.P.C.
3. The petitioner is the 2nd accused in CC No.321/2009, which has arisen from a private complaint. The allegation in the private complaint precisely is that by way of three instalments, the 3rd accused had borrowed an amount of 2,50,000/- from the 2nd respondent/complainant Crl.M.C.1844/2015 : 2 : and issued a cheque in discharge of the said liability. At the time of such borrowal, the 2nd respondent was allegedly made known by the 3rd accused that it was at the instructions of the 2nd accused that the amounts were being borrowed. In the complaint, the 2nd respondent has no case that the 2nd accused had ever forwarded a demand to him for any such amounts, directly. It was the specific case that the 2nd respondent was informed by the 3rd accused that it was for the use of the 2nd accused the amounts were being borrowed.
4. When PWs 1 and 2 were examined before the court below for framing charges, they have made a substantial deviation from the original case in the private complaint. As rightly pointed out by the learned counsel for the petitioner, it seems that in the evidence, they have substituted the role of the 3rd accused with that of the petitioner. In their evidence, they have specifically forwarded a case that on three different occasions, the petitioner had Crl.M.C.1844/2015 : 3 : borrowed amounts from the 2nd respondent allegedly for the use of the 3rd accused. Therefore, it is evident that the evidence adduced by PWs1 and 2 are quite contradictory to the contents of the private complaint.
5. The learned counsel for the petitioner has pointed out the reason also. The 3rd accused is absconding and his whereabouts are not known. The 1st accused, even though initially appeared in the case, has later left the country and is not available at present. The only person available in station is the 2nd accused/petitioner and that is the reason why PW1 and PW2 have chosen to substitute the role of the 3rd accused with that of the petitioner.
6. It seems that the court below has lost sight of these material aspects. On a perusal of the said records, it is evident that there are no sufficient grounds to proceed against the petitioner in the matter and, therefore, the court below ought to have discharged the petitioner. Annexure-H order has resulted in substantial miscarriage of justice and, Crl.M.C.1844/2015 : 4 : therefore, the same has to be quashed.
In the result, this Crl.M.C. is allowed and Annexure-H order is quashed. The petitioner is discharged from the offences alleged against him in CC No.321/2009 of the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/21/01 // True Copy // PA to Judge