Kerala High Court
Leela Jose vs State Of Kerala on 17 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:77157
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA,
1946
CRL.MC NO. 8196 OF 2024
CRIME NO.3711/2011 OF ERNAKULAM CENTRAL POLICE
STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.21 OF 2016
OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONERS/ACCUSED NO.2 TO 7:
1 LEELA JOSE
AGED 66 YEARS
W/O JOSE CYRIAC PANAMKUZHAKKAL HOUSE SRM ROAD
ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
2 RUBY MOTTY
AGED 62 YEARS
W/O MOTTI CYRIAC PANAMKUZHAKKAL HOUSE SRM
ROAD ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
3 LUCY ROY
AGED 60 YEARS
W/O P C ROY PANAMKUZHAKKAL HOUSE SRM ROAD
ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
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4 ROSE MOL SAJI
AGED 58 YEARS
W/O SAJI CYRIAC PANAMKUZHAKKAL HOUSE SRM ROAD
ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
5 JOSE CYRIAC
AGED 67 YEARS
S/O JOSE KURIAN PANAMKUZHAKKAL HOUSE SRM ROAD
ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
6 MOTTI CYRIAC
AGED 64 YEARS
S/O JOSE KURIAN PANAMKUZHAKKAL HOUSE SRM ROAD
ERNAKULAM VILLAGE ERNAKULAM DISTRICT,
PIN - 682011
BY ADVS.
S.RAJEEV
V.VINAY
SARATH K.P.
M.S.ANEER
PRERITH PHILIP JOSEPH
ANILKUMAR C.R.
K.S.KIRAN KRISHNAN
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ABHIRAJ
AGED 46 YEARS
S/O LAZAR MANDUMPAL HOUSE ERNAKULAM VILLAGE
THRIKKANARVATTOM DESOM KANAYANNUR TALUK
ERNAKULAM DISTRICT, PIN - 682312
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BY ADV.
SRI. NOUSHAD K. A. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 17.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
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BECHU KURIAN THOMAS, J
......................................................
Crl.M.C. No.8196 of 2024
...................................................
Dated this the 17th day of October, 2024
ORDER
The petitioners are accused Nos.2 to 7 in
C.C No.21/2016 on the files of the Chief Judicial Magistrate
Court, Ernakulam, arising out of Crime No.3711/2011 of
Ernakulam Central Police Station. Petitioners challenge the
proceedings in the aforesaid case.
2. The prosecution alleges that accused Nos.1 to 7 are
the Directors of a company owning a hotel by name "Sea Shells"
and they had induced the defacto complainant to deposit an
amount of Rs.1.25 Crores with the company promising to return
the deposit on termination of a licence arrangement and
believing the words, the defacto complainant deposited the
amount and entered into the licence. Thereafter, the accused
failed to comply with the terms and even though the defacto
complainant later expresses disinterestedness to proceed with
the deed of licence due to the conduct of the accused and
demanded back the amounts. Accused refused to do so and the
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accused indulged in such a conduct with an intention to deceive
the complainant from the very beginning and thereby the
accused committed the offences under Sections 403, 405, 418
and 420 r/w Section 34 of IPC.
3. The learned counsel for the petitioners vehemently
contended that the allegations in the Final Report do not make
out any of the offences alleged. He also submitted that, initially
the Police had filed a Final Report referring the case as one of
civil nature and thereafter a protest complaint was filed and the
learned Magistrate took cognizance of the offence without
noticing that the subsequent licence allegedly agreed between
the parties were not produced until 2021. It was further
submitted that Anenxure-X agreement which was produced,
clearly indicates that the signatures were all forged and
therefore, no reliance could have been placed on the said
agreement. The learned counsel further submitted that, though
a discharge petition was filed by the petitioners it was dismissed
without considering the legal issues involved.
4. The learned Public Prosecutor however, submitted
that the defacto complainant had in the sworn statement itself
specifically mentioned the existence of the subsequent
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agreement and the contentions now raised are all matters to be
decided at the time of trial. It was further submitted that, the
case is posted to tomorrow for trial and therefore, no prejudice
would be caused to the accused, if they participate in the trial.
5. I have considered the rival contentions. The
petitioners are relying upon an agreement produced as
Annexure-X which according to them is a forged agreement.
The contention regarding forgery of a document cannot be
decided by this Court under Section 528 of of the Bharatiya
Nagarik Suraksha Sanhita, 2023 especially since, those are
disputed facts which will have to be considered at the time of
trial.
6. Apart from the above, the nature of
contentions raised by the petitioners are matters which can be
decided only at the time of trial. The petitioners had not
produced the order dismissing their application for discharge
initially. Subsequently, they produced the document as
Annexure-IV. A reading of the said order also indicates that the
learned Magistrate had gone through the documents and arrived
at the conclusion that, prima facie the offences alleged are
made out.
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7. Since the case is now posted for trial to tomorrow,
the petitioners need not wait for any further. For the last eight
years, petitioners have been waiting in the wings to have the
case concluded. Therefore, at this juncture the Court should be
loath to interfere.
8. The Supreme Court has repeatedly observed
in the decisions in Mahendra K.C. v. State of Karnataka and
Ors. 2022 (2) SCC 129, that the power to quash a criminal
proceeding should be exercised with circumspection, and that
too in exceptional cases. Further, while exercising the inherent
power, this Court ought not to embark upon an enquiry as to the
reliability, genuineness, or otherwise of the allegations made in
the FIR, or the final report. The Supreme Court had observed in
Mahendra's case (Supra) that the power under section 482
should be exercised sparingly and cautiously and only when the
Court is of the opinion that there will be a gross miscarriage of
justice, should resort be made to such powers.
9. Recently a three Judge Bench of the Supreme Court
had, in Priyanka Jaiswal v. State of Jharkhand 2024 SCC
Online SC 685 observed that, at the time of examining the
prayer for quashing of the criminal proceedings, the court
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exercising extraordinary jurisdiction can neither undertake to
conduct a mini trial nor enter into an appreciation of evidence of
the case. It was also observed that the correctness or otherwise
of the allegations made in the complaint cannot be examined on
the touchstone of the probable defence that the accused may
raise to stave off the prosecution. The observations in the
decision in State of Uttar Pradesh v. Akhil Sharda, 2022
SCC OnLine SC 820 that no mini trial can be conducted by the
High Court in the exercise of powers under S.482 CrPC was
referred to in the above decision.
10. Since, the jurisdiction under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, should be exercised
only in exceptional circumstances, I am of the view that such a
situation does not arise in this case.
Accordingly this Crl.M.C is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJ
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PETITIONER ANNEXURES
Annexure-I A CERTIFIED COPY OF THE AGREEMENT DATED
08.09.2009 PRODUCED BY THE 2ND RESPONDENT
Annexure-II A TRUE COPY OF THE LEGAL NOTICE DATED
28.06.2011 PRODUCED IN CC NO 21/2016
Annexure-III THE REPLY NOTICE ISSUED ON BEHALF OF THE
PETITIONERS DATED 18.07.2011
Annexure-IV A TRUE COPY OF THE FIR IN CRIME NO
3711/2011 IN ERNAKULAM CENTRAL POLICE
STATION
Annexure-V A TRUE COPY OF THE REFER REPORT IN CRIME
NO 3711/2011 IN ERNAKULAM CENTRAL POLICE
STATION
Annexure-VI TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 2ND RESPONDENT BEFORE THE CHIEF
JUDICIAL MAGISTRATE COURT, ERNAKULAM
Annexure-VII TRUE COPY OF THE SWORN STATEMENT OF
ABHIRAJ RECORDED UNDER SECTION 200 CRPC IN
Annexure-VIII A CERTIFIED COPY OF THE ORDER TAKING
COGNIZANCE IN CC NO 21/2016 BY THE CHIEF
JUDICIAL MAGISTRATE COURT, ERNAKULAM
Annexure-IX A TRUE COPY OF NEW VAKALAT ALONG WITH THE
RELINQUISH MEMO
Annexure-X A CERTIFIED COPY OF THE ALLEGED AGREEMENT
DATED 23.11.2009 PRODUCED BY THE 2ND
Annexure-XI A TRUE COPY OF THE COMPLAINT AND ITS
RECEIPT DATED 03.10.2014
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Annexure-XII A TRUE COPY OF THE PROCEEDINGS IN CC NO
21/2016 ON THE FILE OF CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM FROM
20.04.2016 TO 06.09.2024
Annexure-XIII A TRUE COPY OF THE DISCHARGE PETITION
FILED BY THE APPLICANTS U/S 239 CRPC AS
Annexure-XIV THE TRUE COPY OF THE ORDER DATED
28.12.2023 IN CMP NO 1014/2022 IN CC NO
21/2016 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM
