Gangadharan Pillai vs State Of Kerala
2025 Latest Caselaw 822 Ker

Kerala High Court

Gangadharan Pillai vs State Of Kerala on 10 July, 2025

Author: Kauser Edappagath

Bench: Kauser Edappagath

Crl.M.C.Nos.2666/19 & 10974/23

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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

   THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947

                        CRL.MC NO. 2666 OF 2019

           IN CC NO.1082 OF 2016 OF ADDITIONAL CHIEF JUDICIAL
                  MAGISTRATE, THIRUVANANTHAPURAM
PETITIONER/A2:

            RAVI KUMAR, AGED 70 YEARS
            S/O BHASKARAN NAIR, DEVI HOUSE, MLA ROAD, MOOZHI
            NADA, KATTAIKONAM, AYIROORPPARA VILLAGE,
            THIRUVANANTHAPURAM.


            BY ADV SRI.SHAJIN S.HAMEED


RESPONDENTS/STATE & CW1:

     1      STATE OF KERALA
            REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM.

     2      GANGADHARAN PILLA
            S/O. RAMAN PILLA, SREEBHAVAN, GRA 390,
            GOWREESHAPATTAM, PATTOM VILLAGE,
            THIRUVANANTHAPURAM DISTRICT, PINCODE.695 004.


            BY ADV SHRI.J.S.AJITHKUMAR R2
            SRI. E.C. BINEESH, SR. PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 10.07.2025, ALONG WITH Crl.MC.10974/2023, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.Nos.2666/19 & 10974/23

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                                                  2025:KER:51101


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

   THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947

                       CRL.MC NO. 10974 OF 2023

           IN CC NO.1082 OF 2016 OF ADDITIONAL CHIEF JUDICIAL
                  MAGISTRATE, THIRUVANANTHAPURAM
PETITIONER/DEFACTO COMPLAINANT:

            GANGADHARAN PILLAI,
            AGED 78 YEARS
            S/O RAMAN PILLAI,RESIDING AT SREEBHAVAN, GRA 390,
            GOWREESAPATTOM, PATTOM VILLAGE,
            THIRUVANANTHAPURAM, PIN - 695004


            BY ADV SHRI.J.S.AJITHKUMAR


RESPONDENTS/RESPONDENTS:

     1      STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA. ERNAKULAM., PIN - 682031

     2      SANTHOSH, TC 11/1863, YMR 88, MULLASSERY LANE,
            NANTHANCOD, KOWDIYAR, THIRUVANANTHAPURAM - 695010

     3      RAVI KUMAR,AGED 74 YEARS
            S/O BHASKARAN NAIR, DEVI NILAYAM, MLA ROAD,
            MOOZHINADA, KATTAIKONAM, AYIROORPARA VILLAGE,
            THIRUVANANTHAPURAM DISTRICT, PIN - 695023

            SRI.E.C. BINEESH, SR. PP



      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 10.07.2025, ALONG WITH Crl.MC.2666/2019, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.Nos.2666/19 & 10974/23

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                                                     2025:KER:51101



                                 ORDER

The petitioner in Crl.M.C.No.2666/2019 is the 2 nd accused

in C.C.No.1082/2016 on the files of the Additional Chief Judicial

Magistrate Court, Thiruvananthapuram. The offences alleged are

punishable under Sections 468, 471 and 420 read with Section 34

of the IPC.

2. The prosecution allegation in short is that, the

petitioner and the 1st accused promised to arrange license for a

petrol pump of Indian Oil Corporation at Kowdiar and the 1 st

accused obtained ₹27.20 lakhs and the 2nd accused obtained

₹55.60 lakhs on various occasions from the defacto complainant

and thereafter cheated him by not arranging license for the petrol

pump or returning the amount received. It is further alleged that

the 1st accused handed over a forged cheque towards the

repayment of an amount of ₹90 lakhs, which on presentation was

dishonoured.

3. The defacto complainant has been arrayed as the

2nd respondent in Crl.M.C.No.2666/2019. Initially, the 2 nd

respondent filed Annexure I complaint before the Commissioner of

Police, Thiruvananthapuram against the petitioner. Based on Crl.M.C.Nos.2666/19 & 10974/23

2025:KER:51101

Annexure I, Annexure J FIR was registered against the petitioner

for the offence punishable under Sections 420 and 34 of the IPC.

After investigation, Annexure R2(I) refer report was filed on

10.5.2011. Thereafter, the 2nd respondent preferred Annexure K

protest complaint before the trial court. The learned Magistrate

forwarded the said complaint to the police for investigation under

Section 156(3) of Cr.P.C. The police registered Annexure A FIR

for the offences under Sections 468, 471, 420, 419, 120B and 34

of the IPC. After investigation, Annexure B final report was filed

against the petitioner. The learned Magistrate received the final

report, took cognizance and numbered the case as

C.C.No.1082/2016. This Crl.M.C has been filed by the 2 nd accused

to quash Annexure B final report and all further proceedings in

C.C.No.1082/2016 against him. Crl.M.C.No.10974/2023 has been

filed by the 2nd respondent/defacto complainant in

Crl.M.C.No.2666/2019 to expedite the trial in C.C.No.1082/2016.

4. I have heard Sri. Shajin S. Hameed, the learned

counsel for the petitioner in Crl.M.C.No.2666/2019, Sri. J.S. Ajith

Kumar, the learned counsel for the 2 nd respondent/defacto

complainant and Sri. E.C. Bineesh, the learned Senior Public

Prosecutor.

Crl.M.C.Nos.2666/19 & 10974/23

2025:KER:51101

5. Though various grounds have been raised in

Crl.M.C.No.2666/2019, the main thrust of the argument of the

petitioner is that, taking cognizance of the offence based on

Annexure B final report without referring to or taking note of

Annexure R2(I) refer report is bad in law. I find some force in the

said argument.

6. As stated already, initially, Annexure J FIR was

registered by the police based on Annexure I complaint.

Investigation was conducted and Annexure R2(I) refer report was

filed. Objecting the refer report, the 2 nd respondent preferred

Annexure K protest complaint. The learned Magistrate, instead of

ordering further investigation, forwarded the protest complaint to

the police under Section 156(3) of Cr.P.C. The police conducted

thorough investigation and filed Annexure B final report.

Annexure B final report was filed under Section 173(2) of Cr.P.C.

In the eye of law, it can be treated only as a supplementary final

report in terms of Section 173(8) of Cr.P.C. It is settled that the

positive and negative reports submitted under sub-sections (2)

and (8) of Section 173 respectively must be read conjointly to

determine if there is a prima facie ground for believing that the

accused has committed the offence. The reports do not have Crl.M.C.Nos.2666/19 & 10974/23

2025:KER:51101

separate existence. This position is settled by the decision of the

Supreme Court in Vinay Tyagi v. Irshad Ali alias Deepak &

Others [(2013) 5 SCC 762]. The decision in Vinay Tyagi (supra)

was followed by the Supreme Court in Luckose Zachariah @ Zak

Nedumchira Luke v. Joseph Joseph and Others (2022 KHC

6253) and held that it is necessary for the Magistrate to examine

the initial report as well as the supplementary report which was

submitted after further investigation and the Magistrate had to

take a considered view in accordance with law as to whether there

is ground for presuming that the persons named as accused have

committed the offence.

7. It appears from the records that before taking

cognizance of the offences, the learned Magistrate did not consider

Annexure R2(I) refer report at all. In view of the clear position of

law enunciated in the judgments of the Supreme Court in Vinay

Tyagi (supra) and Luckose Zachariah (supra), it is incumbent

for the Magistrate to have due regard to both the reports,

Annexure B negative report and Annexure R2(I) positive report.

Thereafter, the Magistrate has to take a considered view in

accordance with law as to whether there is a ground for presuming

that the accused have committed the offence. Hence, the learned Crl.M.C.Nos.2666/19 & 10974/23

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Magistrate shall reexamine both the reports and take a considered

decision expeditiously within a period of one month from the date

of receipt of a copy of this order.

Crl.M.C.No.2666/2019 is disposed of as above. In view of

the order in Crl.M.C.No.2666/19, Crl.M.C No.10974/2023 is

closed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE kp Crl.M.C.Nos.2666/19 & 10974/23

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APPENDIX OF CRL.MC 10974/2023

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE FINAL REPORT SUBMITTED BY CI OF POLICE, MEDICAL COLLEGE POLICE STATION IN CC NO. 1082/2016 ON THE FILE OF ACJM, THIRUVANANTHAPURAM Annexure A2 COPY OF THE ORDER DATED 15/09/2023 IN CRL MC NO. 2666/2019 ON THE FILE OF THIS HON'BLE COURT Crl.M.C.Nos.2666/19 & 10974/23

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PETITIONER ANNEXURES

ANNEXURE A PHOTOCOPY OF THE FIR IN CRIME NO.1482/2011 OF MEDICAL COLLEGE POLICE STATION.

ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1482/2011 OF MEDICAL COLLEGE POLICE STATION.

ANNEXURE C CERTIFIED COPY OF THE COMPLAINT IN C.C.NO.215/2005 OF THE JUDICIAL IST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM. ANNEXURE D PHOTOCOPY OF THE ORDER DATED 1.6.2009 IN C.C.NO.215/2005 OF THE JUDICIAL IST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM.

ANNEXURE E               PHOTOCOPY OF THE PLAINT IN OS NO.160/2004
                         OF      THE      RINCIPAL        SUB     COURT,
                         THIRUVANANTHAPURAM.
ANNEXURE F               PHOTOCOPY     OF    THE    JUDGMENT     IN    OS

NO.160/2004 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM DATED 6.4.2005.

ANNEXURE G               PHOTOCOPY OF THE PLAINT IN OS NO.162/2004
                         OF   THE    2ND    ADDITIONAL      SUB   COURT,
                         THIRUVANANTHAPURAM.
ANNEXURE H               PHOTOCOPY       OF     THE      JUDGMENT      IN

O.S.NO.162/2004 ON THE FILE OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

Annexure-I               THE PHOTOCOPY OF THE PETITION FILED BY
                         THE   2ND   RESPONDENT      DATED    27/02/2007
                         BEFORE    THE    COMMISSIONER      OF   POLICE,
                         THIRUVANANTHAPURAM CITY
Annexure-J               THE PHOTOCOPY OF THE FIR IN CRIME

NO.82/2007 OF MEDICAL COLLEGE POLICE STATION Annexure-K THE TRUE COPY OF THE CMP. NO.4256/2011 FILED BY THE 2ND RESPONDENT BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM Crl.M.C.Nos.2666/19 & 10974/23

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RESPONDENT ANNEXURES

Annexure R2(I) Copy of the reference report dated 15/04/2010 to the Additional Chief Magistrate court, by investigating officer in Crime No. 82/2007 of Medical College Police Station Annexure R2(II) Copy of the judgment in WP(C) No. 10838 of 2011 dated 23/05/2011 on the file of High Court of Kerala Annexure R2(III) True copy of the extract of the findings of the DYSP, special investigation team, Police headquarters Thiruvananthapuram dated 10/08/2012 Annexure R2(IV) True copy of communication dated 07/09/2012 from the state police chief, Kerala to the District Police Chief, Thiruvananthapuram Annexure R2(V) True copy of communication dated 19/10/2012 by junior superintendent, police headquarters, Thiruvananthapuram to the petitioner Annexure R2(VI) True copy of the Judgment in WP(C)No.20781/2013 dated 01/09/2015 Annexure R2(VII) True copy of the judgment of Con. Case (C) No 507/2016 dated 05/04/2016 Annexure R2 (VIII) TRUE COPY COPY OF THE MEMORANDUM OF WP(C)

Annexure R2 (IX) TRUE COPY COPY OF THE PROTEST COMPLAINT SUBMIT IN CRIME NO 82/2007 PARCEL OF THE STATEMENT OF OBJECTION IN THE ABOVE CRL MC

Annexure R2(X) TRUE COPY OF THE COVERING LETTER WITH COMPLAINT SUBMITTED BEFORE THE ACJM, THIRUVANANTHAPURAM DATED 12/07/2024