Kerala High Court
Vidhyadharan Thampi vs The State Of Kerala on 11 April, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 715 of 2011()
1. VIDHYADHARAN THAMPI, AGED 44 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SMT.P.K.PRIYA
For Respondent :SRI.BLAZE K.JOSE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/04/2011
O R D E R
THOMAS P. JOSEPH, J.
----------------------------------------
Crl.M.C.No.715 of 2011
---------------------------------------
Dated this 11th day of April, 2011
ORDER
Petitioner is the second accused in Crime No.78 of 2010 of Palakkad Town South Police Station and C.C. No.135 of 2010 of the Court of learned Chief Judicial Magistrate, Palakkad (for short, "the CJM") for offences punishable under Secs.420 and 120B of the Indian Penal Code. That case originated on a private complaint filed by the second respondent before learned CJM (Annexure-A, complaint) which was forwarded to the police for investigation under Sec.156(3) of the Code of Criminal Procedure (for short, "the Code"). The Police registered Crime No.78 of 2010 and after investigation submitted final report alleging that petitioner and accused Nos.1, 3 and 4 conspired together and to cheat the second respondent/de facto complainant executed certain documents and thereby caused loss to the second respondent. In this Criminal Miscellaneous Case petitioner seeks to quash proceeding against him contending that allegations against him are false and that at any rate, allegations do make out a case against him. Learned counsel, placing reliance on the decisions in Shunduru Siva Ram Krishna Vs. Peddi Ravindra Crl.M.C.No.715 of 2011 -: 2 :- Babu (2009 (11) SCC 203) and Asoke Basak Vs. State of Maharashtra & Ors. (2010) 10 SCC 660) contended that there are no specific averments in Annexure-A, complaint or in Annexure-B, final report as to the alleged conspiracy involving petitioner. It is contended that in the absence of particulars of the alleged conspiracy stated even in Annexure-B, final report, proceeding with the case would only a wasteful exercise and in the circumstances this Court is justified in interfering under Sec.482 of the Code and quashing proceeding against petitioner. Learned counsel for second respondent contended that at this stage, this Court is not required to go into the acceptability of materials collected by the investigating agency. That is the function of the trial court, it is pointed out. According to learned counsel Annexure-A, complaint and Annexure-B, final report specify the allegations against petitioner as well correctness of which is to be decided by the trial court. This Court is not required to interfere into the correctness of the same and quash proceeding. Reliance is placed on the decision in State of A.P Vs. Aravapally Venkanna and Anr. (AIR 2009 SC 1836).
2. It is not disputed that petitioner/second accused availed a loan from the Canara Bank (for short, "the Bank") in the year 1996 on the security of property belonging to himself and Crl.M.C.No.715 of 2011 -: 3 :- the first accused. The first accused created an equitable mortgage in favour of the said Bank by deposit of original title deeds. Receipt of the original title deeds concerning property of the first accused is evidenced by Annexure-D, letter dated 10.02.1996 issued by the first accused in favour of the Bank. On 05.04.2005 the first accused executed a power of attorney in favour of the third accused who is said to have sold the mortgaged property, on the strength of that power of attorney to the fourth accused. The fourth accused is said to have sold the said property to the second respondent. It is alleged that the equitable mortgage over the said property to the Bank was suppressed from the notice of the second respondent. Later the Bank initiated proceeding against the first accused and petitioner for recovery of the amount due charged on the properties of the petitioner and the first accused. The Bank filed application before the Debt Recovery Tribunal (for short, "the DRT") which passed Annexure-C, order granting decree in favour of the Bank charged over property of the first accused as well (which was allegedly assigned in favour of the second respondent). It is thereon that second respondent filed Annexure-A, complaint alleging that petitioner and others conspired together and cheated him.
3. It is pointed out by learned counsel for petitioner that Crl.M.C.No.715 of 2011 -: 4 :- there are no specific averments either in Annexure-A, complaint or, Annexure-B, final report, or any material produced by the police along with Annexure-B, final report to show when, where and how petitioner allegedly conspired with the other accused to cheat the second respondent. The mere allegation that petitioner conspired with the remaining accused is not sufficient to sustain the final report and put petitioner on trial. In such situation it is a wasteful exercise to put petitioner on trial and hence this Court has to interfere under Sc.482 of the Code, it is contended.
4. Learned counsel for the second respondent has invited my attention to the decision in State of A.P Vs. Aravapally Venkanna a Another (supra). There, a request was made to quash the First Information Report (FIR). The Supreme Court stated the circumstances in which the FIR could be quashed. In paragraph 6 of the judgment referring to R.P.Kapur Vs. State of Punjab (AIR 1960 SC 866) it is stated that FIR could be quashed in the following circumstances,
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g., want of sanction.
(ii) where the allegations in the first information Crl.M.C.No.715 of 2011 -: 5 :- report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. In paragraph 7, the Supreme Court referring to R.P.Kapur Vs. State of Punjab (supra) observed that in dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or many not support the accusations. When exercising jurisdiction under Sec.482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained, that being the function of the trial court. In paragraph 8 it is observed that the High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in Crl.M.C.No.715 of 2011 -: 6 :- their true perspective without sufficient material. It is further held that if the allegations do not constitute the offence of which, cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Sec.482 of the Code. It is not, however necessary that there should be meticulous analysis of the case before the trial court to find out whether the case would end in conviction or acquittal.
5. It is based on the above observations learned counsel for second respondent contended that it is not justifiable for this Court to interfere in the matter in the light of the allegations made in Annexure-A, complaint and which according to the learned counsel was found correct in the investigation as revealed by Annexure-B, final report. But, in Shunduru Siva Ram Krishna Vs. Peddi Ravindra Babu (supra) it has also been held that it is within the power of High Court to consider the materials on record to find whether going for trial would be a wasteful exercise and if so, interfere under Sec.482 of the Code. Asoke Basak Vs. State of Maharashtra & Ors. (supra) dealt with a case where there was no specific allegations made out against the accused and it was found that High Court is justified in its interference.
Crl.M.C.No.715 of 2011 -: 7 :-
6. I shall consider the present case in the light of decisions referred supra and the principles stated by the Supreme Court. In Annexure-A, complaint, in paragraph 4 it is stated that petitioner and the first accused after availing a loan on the security of their property conspired together with the remaining accused and with intend to cheat the second respondent they joined together and the first accused executed the power of attorney in favour of the third accused on 07.09.1999 as document No.49/1999. The third accused, based on that power of attorney executed assignment deed No.2628 of 2000 in favour of the fourth accused. The fourth accused assigned the property to the second respondent. It is stated that it was with intention to cheat the second respondent that petitioner and others did as above. In the final report it is stated that petitioner conspired with accused Nos.1, 3 and 4 and to cheat the second respondent, documents above were executed.
7. It is true that there is an allegation in the complaint and final report about petitioner conspiring with other accused to cheat the second respondent and cause loss to him. But, a mere allegation in that line is not sufficient. In Pulin Behari Das Vs. Emperor (13 Crl. L.J. 609) it is held as under:
"a complaint must contain a statement of facts Crl.M.C.No.715 of 2011 -: 8 :- relied upon as constituting the offence in ordinary and concise language, with as much certainty as the nature of the case would admit. A complaint, in which no facts are set forth, but the words of the sections of the statute are literally copied, is a colourable compliance with the requirements of the statute".
(emphasis supplied) It is therefore clear that what is required is not literally copying the ingredients of Sections of the offences in the complaint. In the present case Annexure-A, complaint and Annexure-B, final report only make a literal compliance with Sec.120B of the IPC in that it is averred that petitioner was a party to the alleged conspiracy with the remaining accused. I am aware that whether there is criminal conspiracy or not is not always a matter for direct evidence. It depends on circumstances. Learned counsel for the second respondent has brought to my attention Annexure- C, order passed by the DRT where it is stated that petitioner and the first accused appeared before the DRT through the same counsel and petitioner contended in that proceeding that there was no such mortgage as pleaded by the Bank. I am afraid, that by itself is not sufficient to indicate that there is conspiracy Crl.M.C.No.715 of 2011 -: 9 :- between petitioner and the remaining accused. It was not a joint defence taken by petitioner and the first accused. As a defendant, petitioner has taken up a contention that there was no mortgage. Petitioner did not contest the said proceeding. It is also relevant to note that neither in Annexure-A, compliant nor in Annexure-B, final report, the defence taken by petitioner before the DRT is pleaded as circumstance indicating criminal conspiracy, involving petitioner. It is also relevant to note that the first accused did not file written statement before the DRT.
8. I went through the entire length and breadth of Annexure-A, complaint and Annexure-B final, report. There is no allegation that petitioner was present at the time the impugned documents were executed by accused 1, 3 and 4. Petitioner is not a party, not even a witness in the said documents. There is no case that the power of attorney was executed by the first accused concerning his property either in the presence of petitioner or that petitioner was a party to that document at least as a witness. There is no case that at the time any of the documents were executed by third accused in favour of fourth accused or the latter in favour of the second respondent, petitioner was present. The final report does not say how, when and where petitioner got involved in the (alleged) criminal conspiracy with the remaining accused. In the circumstances Crl.M.C.No.715 of 2011 -: 10 :- merely alleging that petitioner was a party to the conspiracy, is not sufficient compliance with the requirement of law. It is only a vague, generalised and bald allegation.
9. I was given a copy of the statement of the witnesses cited by the prosecution (who include second respondent and his brother) to prove the alleged conspiracy. The second respondent and his brother merely stated that petitioner is also involved in the conspiracy (without mentioning how, when and where the conspiracy was entered into) and the other two witnesses have not even mentioned about the alleged conspiracy. The second respondent and his brother are not witnesses to any transaction till the fourth accused got assignment of the property. Hence they could not also give any evidence of alleged conspiracy involving petitioner. In these circumstances sending petitioner to trial in my view is a wasteful exercise. I am inclined to accept the contention of petitioner that there is absolutely no circumstance or material produced by the prosecution to put petitioner on trial. I also bear in mind that in the decision relied on by learned counsel for the second respondent question considered was whether the FIR was to be quashed when the investigating agency was yet to collect evidence unlike the present case where the investigating agency has collected materials (statement of witnesses which I have adverted to). Crl.M.C.No.715 of 2011 -: 11 :-
Resultantly this Criminal Miscellaneous Case is allowed. Final report in Crime No.78 of 2010 of Palakkad Town South Police Station, cognizance taken thereon and proceeding against petitioner/accused No.2 in C.C. No.135 of 2010 of the Court of learned Chief Judicial Magistrate, Palakkad are quashed.
(THOMAS P JOSEPH, JUDGE) Sbna/-