Kerala High Court

Prasannakumari Amma vs State Of Kerala on 21 November, 2024

Author: P.V. Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                      2024:KER:87822

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946

                       CRL.MC NO. 4958 OF 2018

        CRIME NO.1525/2011 OF Medical College Police Station,

                            Thiruvananthapuram

        AGAINST THE ORDER/JUDGMENT DATED IN CC NO.505 OF 2012 OF

ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM

PETITIONERS/ACCUSED NO.1 & 2:

    1       PRASANNAKUMARI AMMA
            AGED 63 YEARS
            S/O. JANAMMA, DEVIKRIPA HOUSE, THAMARAKULAM LANE,
            T.C.9/2076, SASTHAMANGALAM, THIRUVANANTHAPURAM.

    2       VASANTHAN
            AGED 66 YEARS
            S/O. PARAMESWARAN, DEVIKRIPA HOUSE,
            THAMARAKULAM LANE, T.C.9/2076,
            SASTHAMANGALAM, THIRUVANANTHAPURAM.

            BY ADVS.
            SRI.S.RAJEEV
            SRI.K.ANAND A-1921
            SRI.K.K.DHEERENDRAKRISHNAN
            SRI.D.FEROZE
            SRI.V.VINAY


RESPONDENTS/STATE/DEFACTO COMPLAINANT:

    1       STATE OF KERALA
            REP. BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM - 682 031.
            (CRIME NO. 1525/2011 OF MEDICAL COLLEGE POLICE STATION,
            THIRUVANANTHAPURAM DISTRICT)

    2       HARIDAS
            AGED 54 YEARS
 CRL.MC NO. 4958 OF 2018              2




                                                       2024:KER:87822
            S/O. KRISHNA PILLAI, KUNNUMPURAM HOUSE,
            MALAYINKEEZHU, THIRUVANANTHAPURAM - 695 572.


            BY ADVS.
            P.B.SUBRAMANYAN
            SABU GEORGE(K/000711/1998)
            MANU VYASAN PETER(K/000652/2013)
            MEERA P.(K/000191/2019)
            AISWARYA MOHAN(K/274/2020)
            SRI.SANGEETHARAJ N.R, PP



      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   21.11.2024,      THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC NO. 4958 OF 2018             3




                                                     2024:KER:87822
                  P.V. KUNHIKRISHNAN, J.
                  -----------------------------------
                   Crl.M.C.No.4958 of 2018
                  -----------------------------------
          Dated this the 21st day of November, 2024

                                ORDER

Petitioners are accused in C.C No.505/2012 on the file of

the Additional Chief Judicial Magistrate Court, Thiruvananthapuram

arising out of Crime No.1525/2011 of Medical College Police Station,

Thiruvananthapuram. The above case is charge sheeted against the

petitioners alleging offences punishable under Sections 406, 420 r/w

Section 34 of IPC.

2. The prosecution case is that the accused with an

intention to deceive the defacto complainant, made the defacto

complainant believe that the provident fund amount which was in the

possession of the defacto complainant and kept in the RCC hospital

was unsafe and obtained the money on the understanding that they

will deposit the money in the account of the defacto complainant.

According to the defacto complainant, the accused did not deposit

the money in the account of the deacto complainant nor returned the

money to the defacto complainant and thereby the accused

committed the offence. After investigation, the investigating agency

submitted Final Report before the court below. Annexure-I is the

Final Report. According to the petitioners, even, if the entire

allegations are accepted no offence is made out.

2024:KER:87822

3. Heard the counsel for the petitioners, learned

counsel appearing for the 2nd respondent and also heard the learned

Public Prosecutor.

4. It is submitted that the petitioners are senior

citizens and deceased Sushama Kumari Amma was the sister of the

1st petitioner. The said Sushama Kumari Amma was cruelly treated

by her husband and extracted money from her possession and kept

some illicit relationships is the submission. The said Sushama

Kumari Amma was working in the Women's College and the entire

salary amounts were collected by the defacto complainant and never

looked after the said Sushama Kumari Amma and she was suffering

with cancer is the further submission. It is further submitted that

her colleagues brought her PF amount in the hospital and handed

over the same to the deceased Sushama Kumari Amma and later

entrusted to the petitioner with specific directions and instructions.

Everything was mentioned in her will which was in the custody of the

defacto complainant. After the demise of Sushama Kumari Amma,

frivolous and imaginary complaint was filed by the defacto

complainant alleging that the petitioners committed breach of trust

is the submission. Hence, the petitioners filed Annexure-II complaint

before the Director General of Police is the submission. On the basis

of the directions given by the City Police Commissioner, a formal

2024:KER:87822 enquiry was conducted by the Assistant Commissioner, Narcotic Cell,

Thiruvananthapuram and submitted a report to the effect that the

investigation conducted by the Police is correct and did not warrant

any interference. It is the case of the petitioners that the materials

submitted by the petitioners were not considered by the Police.

Referred to the above, petitioners again filed a complaint before the

District Police Chief as evident by Annexure-III. But the Police

without conducting any further investigation, submitted a Final

Report is the further submission. It is also submitted that the

defacto complainant submitted a suit before the Sub Court for the

same set of allegations and for recovery of an amount of

Rs.18,03,186/- from the petitioners and the same was elaborately

considered by the Sub Court and rejected the prayer of the defacto

complainant as per Annexure-IV judgment. In the light of the same,

continuation of the prosecution against the petitioners is not

necessary is the submission. The counsel for the 2nd respondent

submitted that Annexure-IV judgment was challenged before this

Court and an appeal is pending. It is also submitted that it is a clear

case of criminal breach of trust and cheating and this Court may not

interfere with the prosecution proceedings pending before the trial

court. The learned Public Prosecutor also submitted that these

contentions are to be raised before the trial court at the appropriate

stage.

2024:KER:87822

5. This Court considered the contention of the

petitioners and the Public Prosecutor. The allegation in the

Annexure-I final report against the petitioners in brief is like this;

"1-ആം സാക്ഷിയെ വിശ്വാസ വഞ്ചന നടത്തി ചതിച്ച് പണാപഹരണം നടത്തണമെന്നുള്ള ഉദ്ദേശത്തോടും കരുതലോടും കൂടി 1-ആം സാക്ഷിയുടെ ഭാര്യ മരണപ്പെട്ട സുഷമാകുമാരി അമ്മ തിരുവനന്തപുരം റീജനൽ കാൻസർ സെന്ററിൽ അഡ്‌മിറ്റായി ചികിത്സയിൽ കഴിഞ്ഞ സമയം ടിയാളുടെ പ്രോവിഡന്റ് ഫണ്ട് മാറി കിട്ടിയ 18,03,186/- രൂപ RCC-ൽ 1-ആം സാക്ഷി വാങ്ങി വച്ചിരുന്നതിനെ 21.11.2011 ആം തീയതി വൈകി 7 മണിയോട് കൂടി, 1 ഉം 2 ഉം പ്രതികൾ ചേർന്ന് രൂപ ആശുപത്രിയിൽ വച്ചിരിക്കുന്നത് സുരക്ഷിതമല്ലെന്നും, 1-ആം സാക്ഷിയുടെ അക്കൗണ്ടിൽ ഇടാമെന്ന് പറഞ്ഞ് വിശ്വസിപ്പിച്ച് 1-ആം സാക്ഷിയിൽ നിന്നും രൂപയും ബാങ്ക് അക്കൗണ്ട് നമ്പരും 1-ആം പ്രതി വാങ്ങി 2-ആം പ്രതിയെ ഏൽപ്പിച്ചും ടി രൂപ 1-ആം സാക്ഷിയുടെ അക്കൗണ്ടിൽ ഇടുകയോ തിരികേ കൊടുക്കുകയോ ചെയ്യാതെ 1 ഉം 2 ഉം പ്രതികൾ 1-ആം സാക്ഷിയെ ചതിച്ചും വഞ്ചിച്ചും ടി രൂപ അപഹരിച്ചെടുത്ത് പ്രതികൾ കൃത്യത്തിന് പരസ്പരം ഉത്സാഹികളും സഹായികളുമായി നിന്ന് പ്രവർത്തിച്ച് മേൽ വകുപ്പുകൾ പ്രകാരമുള്ള കുറ്റം ചെയ്തിട്ടുള്ളതാകുന്നു. "

For the same set of facts the defacto complainant approached the

Civil Court and the Civil Court dismissed the suit as evident by

Annexure-IV. It will be better to extract the relevant portion of

Annexure-IV judgment of the Civil Court;

"21. Now this court may come to the evidence of PW1 to PW4 and DW1. Among the evidence of PW1 to PW4 the evidence of PW2 requires a close examination. According to her evidence she offered the money to Sushamma Kumari. She touched

2024:KER:87822 on the money and thereafter signed the acquittance role. Immediately Sushamma Kumari requested PW2 to hand over the money to the plaintiff - PW1. Thereafter the money was handed over by the plaintiff to the defendants for being deposited in the account of the plaintiff. The evidence of PW2 and PW4 also corroborates this particular aspect.In this circumstance it is evident that the defendants received the PF amount from the hands of plaintiff in the presence of Sushamma Kumari and others and not directly from Sushamma Kuamri.

22. There is no evidence to establish that while Sushamma Kumari was consenting to PW2 to hand over the PF amount to plaintiff, she was doing it by way of gift to PW2 or otherwise with the intention to give that money to the exclusive use of the PW1. Even the plaintiff himself has no such a case that the amount was gifted by Sushmma Kumari before her death. Therefore plaintiff was keeping that amount in his possession as a trustee for Sushamıma Kumari. That money is evidently handed over to defendants in the presence of Sushamma Kumari and others by the plaintiff. Therefore when that amount came to the hands of defendants, that amount continued the character of a trust amount. But, upon the death of Sushamma Kumari that amount became an asset left by Sushamıma Kumari. The alleged Will is not produced before this court and proved in accordance with Sec.68 or 69 of Evidence Act. Briefly stated Sushamma Kumari died intestate as regards at least the PF amount.

23. As per the Ext.B3 judgment, a competent court has found Janamma as the sole legal heir of deceased Sushamma Kumari. That means, Hon'ble Munsiff's Court has declared her to be the sole heir in terms of Sec.17 of Hindu Succession Act. Janamma having died the first defendant has become one of the legal heir to the estate left by Janamma. Viewed from that angle plaintiff is not entitled to any share in the PF amount. Only the legal heirs of Janamma are entitled to the PF amount which can be recovered by them from the hands of 1"and 2 defendants subjected

2024:KER:87822 to the law of limitation, if so they choose to do it. Any how plaintiff has no cause of action or locus standy or entitlement to claim a share in the PF amount. Therefore the question of non jointer of legal heirs of Janamma assumes no importance in the present suit. Hence the suit is not bad for non jointer of necessary party.

24. It is worth noting that while dismissing suit O.S. 414/12, the Hon'ble Munsiff has observed that Haridas (plaintiff herein) is not a legal heir. His entitlement to receive PF amount is only in his capacity as a nominee. A nominee is only a trustee. He is accountable to the real heirs. Hence the said observation will not benefit the plaintiff herein.

25. In the above discussion it has already been found that the plaintiff has no right in the PF amount in the hands of defendants in view of the Ext. B3 judgment. Therefore issue Nos. 1 and 2 are found against the plaintiff."

In the light of the above finding of the Civil Court, I am of the

considered opinion that the continuation of the prosecution against

the petitioners are not necessary. The counsel for the 2nd respondent

submitted that an appeal is pending against Annexure-IV judgment.

Simply because Annexure-IV judgment is challenged in appeal, the

finding in Annexure-IV judgment will not wipe out. Moreover, this

Court peruse the allegations in the Final Report. Those are all civil

dispute which is to be redressed before the Civil Court. Admittedly,

Annexure-IV judgment is delivered by the Civil Court and the same is

challenged by the defacto complainant before this Court. I leave

open all the contentions of the defacto complainant and the defacto

2024:KER:87822 complainant is free to agitate the same before the appellate court in