Smitha Biju vs State Of Kerala
2021 Latest Caselaw 19324 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE K.HARIPAL
    TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
                     CRL.MC NO. 3608 OF 2021
AGAINST THE PROCEEDINGS IN CC 467/2018 N THE FILES OF THE JUDICIAL
   MAGISTRATE OF FIRST CLASS ,PEERUMEDU, IN CRIME NO.98/2008 OF
                    UPPUTHARA POLICE STATION)
PETITIONER/ACCUSED NO.2:

          SMITHA BIJU
          AGED 34 YEARS
          W/O. BIJU,
          CHITHRABHAVAN (NADACKAL HOUSE),
          KATTUKADA, KANCHIYAR P.O,
          AYYAPPANKOVIL VILLAGE,
          IDUKKI DISTRICT.
          BY ADV BABY MATHEW


RESPONDENT/STATE/COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.
    2     SUB INSPECTOR OF POLICE
          UPPUTHARA POLICE STATION,
          IDUKKI DISTRICT, PIN - 685505.


          SR.PP - SRI. RENJITH T.R.


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.M.C.No.3608 of 2021
                                         2



                                      ORDER

Petitioner is the second accused in Crime No.98/2008 of

Upputhara Police Station, which was registered on the basis of the

complaint lodged by one Jacob Mammen, CW1 in the final report,

who is a postal employee, alleging offence under Sections 408,

477(A) read with 34 of the IPC. At that time, the first accused was

the Post Master of Mattuthavalam Post Office and during his leave

period he used to engage the second accused on temporary basis.

The allegation is that the accused persons, in furtherance of their

common intention, had committed misappropriation and falsification

of accounts; the first accused had misappropriated Rs.86,000/- and

the second accused, the petitioner had misappropriated Rs.57,000/-

which were collected from various remittances towards rural postal

life insurance policies, savings deposits and recurring deposits in the

Post Office. On that basis, the crime was registered and on

conclusion of investigation, charge sheet was laid before the Judicial

First Class Magistrate -I, Peermade, where the case was taken on

file as C.C.No.563/2012. The first accused faced trial and by

judgment dated 18.12.2018, he was acquitted. The second accused Crl.M.C.No.3608 of 2021

was absconding and the case against her was refiled as C.C.No.

467/2018.

2. Now, the petitioner has approached this Court placing

reliance on Annexure-II judgment. According to the learned

counsel, by virtue of the evidence tendered before court, the

substratum of the case has been lost and there is no purpose in

troubling petitioner. He also placed reliance on Annexure-III

statement of the CW1 in the final report.

3. I heard the learned Senior Public Prosecutor also. My

pointed attention has been drawn to paragraphs 7 and 8 of the

judgment in C.C.No.563/2012. Similarly, statement of the CW1

given under Section 161 of the Cr.P.C also has been highlighted. It

does not seem that even the prosecution had a specific case on the

role allegedly played by the accused persons. PWs2 to 6 who were

allegedly cheated and whose money were misappropriated have

deposed before the Court that they have received the amount

deposited by them in the Post Office and that no one had cheated

them.

4. The learned Magistrate has also stated that even though

there are allegations that the accused had committed criminal Crl.M.C.No.3608 of 2021

appropriation by not bringing the amount to Government account,

the allegation was lacking in particulars; the prosecution did not

produce any document to show that criminal misappropriation was

done by the accused. That could not be clarified by PW1 who had

launched the prosecution. In other words, there is considerable

force in the submission of the learned counsel that the case has lost

its strength and that substratum of the case has been lost. In the

circumstances, it is idle to drive the petitioner for trial through

C.C.No.467/2018.

Having regard to these circumstances, no purpose will be

served by proceeding against the petitioner. All further proceedings

against the petitioner in C.C.No.467/2018 pending before the

Judicial First Class Magistrate , Peermade are hereby quashed.

Sd/-

K.HARIPAL JUDGE

Jms/14.09 //True Copy// P.A to Judge Crl.M.C.No.3608 of 2021

APPENDIX OF CRL.MC 3608/2021

PETITIONER ANNEXURE Annexure I TRUE COPY OF THE FINAL REPORT DATED 01.10.2012 IN CRIME NO. 98/2008.

Annexure II TRUE COPY OF THE JUDGMENT DATED 18.12.2018 IN C.C 563/2012 ON THE FILES OF JFMC, PEERMADE. Annexure III TRUE COPY OF THE STATEMENT OF THE DEFACTO COMPLAINANT.