Selu vs The State Of Kerala
2021 Latest Caselaw 21602 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                       THE HONOURABLE MR. JUSTICE K.HARIPAL

            TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943

                                 CRL.MC NO. 1768 OF 2021

      (CRIME NO. 316 OF 2012 OF OONNUKAL POLICE STATION, ERNAKULAM DISTRICT)

   AGAINST THE ORDER/JUDGMENT IN CC 374/2020 OF JUDL. MAGISTRATE OF FIRST CLASS,

                            KOTHAMANGALAM, ERNAKULAM

PETITIONER/2ND ACCUSED:

             SELU,
             AGED 54 YEARS
             W/O. SIDDIQUE, RESIDING AT MARATTIKUNNIL HOUSE, ANAKOODU BHAGAM,
             THODUPUZHA VILLAGE AND POST, IDUKKI DISTRICT.

             BY ADVS.
             T.MADHU
             SMT.REKHA NAIR
             SMT.C.R.SARADAMANI
             SRI.SHAHID AZEEZ
             SMT.CHANDRALEKHA SANU



RESPONDENTS/STATE OF KERALA:

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

      2      THE STATION HOUSE OFFICER
             OONNUKAL POLICE STATION, ERNAKULAM DISTRICT - 689 647.

      3      JOY JOHN
             AGED 70 YEARS
             S/O. JOHN, THURAKKAL HOUSE, NEELIMATTOM P. O., KOTHAMANGALAM,
             ERNAKULAM DISTRICT - 686 693.

             BY ADV L.RAM MOHAN



OTHER PRESENT:

             SR.PP - SRI. RENJITH T.R.




      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT

ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.1768 of 2021
                                     2

                                 ORDER

This is a petition filed under Section 482 of the Cr.P.C. by the

2nd accused in C.C. No. 374 of 2020 of the Judicial First Class

Magistrate's Court, Kothamangalam, which arose out of the final

report in Crime No. 316 of 2012 of Oonnukal police station. That

crime was registered basing on Annexure-A1 complaint preferred

by the 3rd respondent before the Court, which was forwarded to the

police for registering a crime and investigation. Thus the crime

was registered alleging offence punishable under Sections 120B,

465, 467, 471 read with Section 34 of the IPC. On conclusion of

investigation, charge sheet was laid against the petitioner and her

husband alleging the above stated crime. Now contending that

there is absolutely no basis in the allegations against the petitioner

she has moved this Court for quashing the proceedings.

2. I heard the learned counsel for the petitioner and also the

learned counsel for the 3rd respondent.

3. Relying on the decision reported in Sumathy S Menon v.

Rajendran T. K. and others {2010 (2) KHC 531} the learned

counsel for the petitioner submitted that the facts are similar and Crl.M.C.No.1768 of 2021

that such an allegation will not sustain against the petitioner, who is

the 2nd accused. According to learned counsel, the petitioner is not

responsible for the acts of her husband, neither mens rea nor actus

reus can be attributed against her. The complainant, the 3 rd

respondent has no allegation that at the time of signing and handing

over the cheque the petitioner was present. Therefore, the

allegations will not sustain against her and she is entitled to be

discharged from the allegations.

4. The learned counsel for the 3rd respondent strongly

opposed the application. According to the learned counsel, there is

suppression of material facts. Earlier he had moved O.P. (Crl.) No.

382 of 2020 for speedy disposal of the case, which was disposed of

on 22.12.2020 and the petitioner had appeared only thereafter, on

03.03.2021. According to the learned counsel, the facts in Sumathy

S Menon's case, quoted supra and facts against the petitioner are

different and distinct therefore the decision in that case cannot be

made applicable here. The learned counsel also invited by pointed

attention to paragraph 9 of Annexure-A1 complaint, where it is

specifically alleged that a criminal conspiracy has been hatched Crl.M.C.No.1768 of 2021

between the husband and wife and everything was done with the

intention of obtaining illegal benefit to the accused and to cause

corresponding loss to the 3rd respondent.

5. The background facts are not in dispute. It is alleged that a

cheque for Rs. 1,00,000/- was issued by the husband of the

petitioner, who is the 1st accused in the Calender Case, in favour of

the 3rd respondent, in discharge of the amount borrowed by him

from the 3rd respondent. The 3rd respondent presented the cheque

for collection in his bank, but it returned due to insufficiency of

funds and also since drawer's signature had differed. When the

statuory lawyer notice was sent, the 1 st accused, husband of the

petitioner did not respond. Thereafter, the 3 rd respondent filed a

complaint alleging offence under Section 138 of the Negotiable

Instruments Act. After taking evidence, by Annexure-A4

judgment, the learned Judicial First Class Magistrate-II,

Thodupuzha acquitted her husband for reasons which are obvious.

During the course of trial of that case it came out that the cheque

belonged to the petitioner, who is the wife of the accused in S. T.

No. 24 of 2011. On that basis, the husband of the petitioner was Crl.M.C.No.1768 of 2021

acquitted and thereafter, Annexure-A1 complaint was preferred

before Court in September, 2012 alleging the above stated

offences.

6. I have no doubt that the allegations in Annexure-A1

complaint cannot be go in tune with Sumathy S Menon's case.

There, the son had allegedly issued a cheque from the account of

the mother so that offence under Sections 417 and 420 read with

Section 34 of the IPC was alleged against the mother and the son

and then the mother approached this Court under Section 482 of

the Cr.P.C. There was no allegation in the complaint in that case

that the mother had played any role in the alleged commission of

crime. That prompted this Court to quash the proceedings against

the mother. But here, as rightly pointed out by the learned counsel

for the 3rd respondent, there is specific allegation that everything

was done by the 1st accused after hatching a conspiracy with the

wife, the petitioner. It is essentially a matter of evidence whether

any criminal conspiracy was hatched prior to the issuance of the

subject cheque by the 1st accused in favour of the 3rd respondent.

The allegations are on different plane and therefore, it is not Crl.M.C.No.1768 of 2021

appropriate for this Court borow the dictum in Sumathy S Menon's

case to exonerate the petitioner.

7. Moreover, the burden is completely on the complainant,

the 3rd respondent to prove the said criminal conspiracy and other

matters alleged against the petitioner and her husband. It is not

appropriate for this Court to venture into an enquiry and conduct

parallel trial and to take a view that the petitioner is totally innocent

on the premise that she was not present at the time of issuing the

cheque; whether she had knowledge about the same, had mens rea

in handing over her security documents to the husband etc. are

matters of evidence to be considered at the time of trial.

8. It is the settled propositions of law that this Court while

considering a petition under Section 482 of the Cr.P.C. cannot

embark upon an enquiry in to the disputed questions of facts which

is the realm of the trial Court. Moreover, a proceedings can be

quashed by this Court only in exceptional circumstances if

overwhelming reasons are made out by the party. Here it is too

early for this Court to say that the petitioner is totally innocent, she

had no knowledge about the alleged mischief if any committed by Crl.M.C.No.1768 of 2021

her husband etc. Therefore, it is only appropriate that she face the

trial.

9. If she is so confident that she is totally innocent and there

is absolutely no material worth the name to proceed against her, it

is open to her to move a petition under Section 239 of the Cr.P.C.

and seek discharge. Instead she has rushed to this Court for

quashing the proceedings. Having regard to the allegations, I do

not think it is proper for this Court to venture consideration of the

arguments of the petitioner.

In the result, the Criminal Miscellaneous Case lacks merit and

is dismissed.

Sd/-

K. HARIPAL JUDGE RMV/04/10/2021 Crl.M.C.No.1768 of 2021

APPENDIX OF CRL.MC 1768/2021

PETITIONER ANNEXURE

ANNEXURE A1 THE CERTIFIED COPY OF THE COMPLAINT IN CMP NO.2212/2012 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOTHAMANGALAM.

ANNEXURE A2 THE TRUE COPY OF THE FIR DATED 19.09.2012 IN CRIME NO.316/2012 OF OONNUKAL POLICE STATION.

ANNEXURE A3 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.316/2012 OF OONNUKAL POLICE STATION.

ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED 10.05.2012 IN S.T.NO.24/2011 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, THODUPUZHA.