P.A.Muhammed Afsal vs State Of Kerala
2021 Latest Caselaw 16473 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE ASHOK MENON
         THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                           CRL.MC NO. 3575 OF 2020
         CRIME NO.740/2010 OF Nadakkavu Police Station, Kozhikode
 AGAINST THE PROCEEDINGS IN CC.NO.260/2018 OF THE COURT OF THE JUDICIAL
    FIRST CLASS MAGISTRATE-IV, KOZHIKODE, - CRIME NO.740/2010 OF THE
                   NADAKKAVU POLICE STATION, KOZHIKODE
PETITIONER/ACCUSED NO.2:

            P.A.MUHAMMED AFSAL,
            AGED 68 YEARS,
            S/O. ABDUL RASAK,
            PUTHIYA VEETTIL HOUSE,
            NEAR MANOJ THEATRE,
            CHENTHRAPPINNI (P.O),
            THRISSUR (DIST.)-680 687

            BY ADV K.DEEPA (PAYYANUR)


RESPONDENTS/STATE/DE-FACTO COMPLAINANT:

     1      STATE OF KERALA,
            REP. BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM, PIN-682 031

     2      SUNAINA HAMEED,
            38 YEARS,
            D/O. ABDUL HAMEED,
            RESIDING AT 'SAYOS',KAINADI LAYOUT,
            FLORICAN ROAD, MALAPARAMBA,
            VENGERI AMSOM, NEDUNGOTTUR DESOM,
            KOZHIKODE (DIST.), PIN-673 001,

            NOW RESIDING AT A-112, PRESTIGE PALMS, ATS,
            ECC ROAD, CNEAR G.R, TECH PARK,
            WHITEFIELD, BANGALORE-66

            SRI.C.S.HRITHWIK - SR.PP

     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.MC NO. 3575 OF 2020
                                       2




                             ORDER

Dated this the 5th day of August 2021

The petitioner is the 2nd accused in Crime

No.740/2010 of Nadakkavu Police Station, Kozhikode, for

having allegedly committed offences punishable under Section

406 of the IPC. The final report was already filed and the case

was taken on file of the Judicial First Class Magistrate

Court - IV, Kozhikode as C.C.No.260 of 2018.

2. The petitioner was absconding as he was employed

abroad. But, the trial proceeded against his son, who is the 1 st

accused and ended in acquittal vide Annexure II judgment. A

reading of that judgment would indicate that there is absolutely

no evidence regarding the entrustment of gold ornaments or

money to the accused. It is on the basis of that the 1 st accused

was not guilty and acquitted. There were also matters pending

before the Family Court concerning the entrustment of

ornament and money. An appeal was filed as

Mat.Appeal.No.794/2011 by the 1st accused against the

order of the Family Court and this Court had vide Annexure III CRL.MC NO. 3575 OF 2020

judgment, observed that there was no evidence regarding

entrustment to the respondents and the petitioner herself was

allegedly operating the locker which contains the gold

ornaments and therefore there is possibility that she may have

used those ornaments for herself. Allegations were also made

against the 2nd respondent that she was living in adultery and

this Court has observed that the fact regarding her living in

adultery stood proved by her subsequent demeanor, an act of

getting married to the person with whom she was supposed to

be living in adultery. Taking all those facts and circumstances,

the 1st accused has already been acquitted and the 2nd accused,

who is now facing trial in CC.No.260/2018, of the Judicial First

Class Magistrate Court- IV, Kozhikode, seeks quashing of the

proceedings as substratum of the prosecution case has been

lost.

3. Heard the learned counsel appearing for the

petitioner and the learned Public Prosecutor. The 2 nd

respondent was issued with notice, but she did not appear.

4. Considering the judgment of the trial court against

the 1st accused, I find that there is absolutely no evidence

against the petitioner. The entrustment is alleged to have been CRL.MC NO. 3575 OF 2020

made to the 1st accused, who was the husband of the 2nd

respondent and the only allegation against the petitioner herein

is that he was also authorized to operate the locker in which the

ornaments were kept. There is no evidence that the ornaments

were entrusted to the petitioner or that he had misappropriated

the same, rather there is specific evidence produced before the

Family Court and upheld by this Court to the effect that the

petitioner herself had appropriated those ornaments. Under

the circumstances, the substratum of the prosecution case has

been lost and no purpose will be served by proceeding with the

trial as against the petitioner.

Hence, the Crl.M.C is allowed and the entire

proceedings in Crime No.740/2010 of Nadakkavu Police

Station, Kozhikode, presently pending as CC.No.260/2018 on

the files of the Judicial First Class Magistrate Court - IV,

Kozhikode, stands quashed under Section 482 Cr.P.C. and the

accused stands discharged and set at liberty.

Sd/-

ASHOK MENON JUDGE

NR/05/08/2021 CRL.MC NO. 3575 OF 2020

APPENDIX

PETITIONER'S ANNEXURE

ANNEXURE 1 TRUE COPY OF THE FINAL REPORT OF CRIME NO.

740/2010 OF THE NADAKKAVU POLICE STATION, KOZHIKODE CHARGE SHEETED U/S., 406 O IPC.

ANNEXURE II TRUE COPY OF THE JUDGMENT DATED 29.02.2020 IN C.C. N. 1039/2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE IV KOZHIKODE.

ANNEXURE III TRUE COPY OF THE COMMON JUDGMENT DATED 11.10.2019 IN MAT. APPEAL NO. 794/11 AND MAT. APPEAL NO. 557/12 OF THIS HONBLE COURT.

ANNEXURE IV TRUE COPY OF THE ORDER DATED 22.06.2020 CRIMINAL PETITION NO. 7670/2016 OF THE HONBLE HIGH COURT OF KARNATAKA AT BENGALURU.

ANNEXURE V TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER ISSUED FROM THE LISIE HEART INSTITUTE LISIE HOSPITAL.

//TRUE COPY// PA TO JUDGE