Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25TH DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 CRL.MC NO. 1650 OF 2013 CRIME NO.274/2004 OF Mavelikkara Police Station, Alappuzha C.C.No. 220/2005 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, MAVELIKKARA, ALAPPUZHA PETITIONER/ACCUSED: BIJU AGED 44 YEARS S/O.VIDHYADHARAN, BINU BHAVAN, KOMALAM, VADAMON P.O., ANCHAL KARA, PATHANAPURAM TALUK, KOLLAM DT. BY ADVS. SRI.R.T.PRADEEP SRI.P.BIJIMON RESPONDENTS/STATE AND DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY IT'S MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, PIN 695023. R1 BY SRI. SUDHEER GOPALAKRISHNAN, PP R2 BY ADV SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.10.2021, THE COURT ON 25.10.2021 PASSED THE FOLLOWING: CRL.MC. No.1650 of 2013 2
ORDER
This Crl.M.C. is filed by the sole accused in C.C.No.220/2005 on the file of the Judicial First Class Magistrate Court-1, Mavelikkara which arose from Crime No.274/2004 of Mavelikkara Police Station. The prayer sought for in the petition is to quash Annexure-III final report and all further proceedings pursuant thereto by invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC).
2. The aforesaid crime was registered against the petitioner for the offences punishable under Section 420 and 477A of the Indian Penal Code
(IPC) and cognizance of the same was taken by the Judicial First Class Magistrate Court-1, Mavelikkara.
3. The prosecution case is that the petitioner while being employed as an empanelled conductor at K.S.R.T.C. depot, Mavelikkara during
CRL.MC. No.1650 of 2013 3 the period from 19.4.2003 to 17.6.2004, with a dishonest intention to deceive K.S.R.T.C. so as to have an unlawful loss to the said institution had
misappropriated an amount of Rs.54,482/- by manipulating the waybill by making overwriting thereon for the purpose of showing that less
number of tickets were sold than the actual sale of tickets. The aforesaid crime was registered on the basis of Annexure-I complaint submitted by the Assistant Transport Officer and based on the same Annexure-II F.I.R. was registered. After completing the investigation, Annexure-III final report was submitted by the police.
4. The case of the petitioner is that the allegations contained in Annexure-1 and Annexure- III do not constitute the offences punishable under Sections 420 and 477A of IPC. He also points out that, consequent to the settlement arrived at
with the KSRTC/2nd respondent herein, the petitioner has already deposited an amount of CRL.MC. No.1650 of 2013 4
Rs.2,17,928/- being the actual amount allegedly misappropriated by him along with penalty at three times of the actual amount. On the above grounds, the petitioner seeks for invocation of the powers of this Court under Section 482 of the Cr.PC and to quash the proceedings against him.
5. Heard Sri. R.T.Pradeep, the learned
counsel for the petitioner, Sri.Sudheer Gopalakrishnan, the learned Government Pleader for 1st respondent and the learned Standing Counsel for the 2nd respondent.
6. The learned counsel for the petitioner
would contend that the offence under Section 420 IPC shall not be attracted even if the allegations contained in Annexure-III charge sheet is taken in its face value. He points out that in order to
attract offence under Section 420 IPC, the complaint should reveal that the accused was having dishonest intention right from the inception of entrustment of the property or CRL.MC. No.1650 of 2013 5
amount. In this case, such a case is lacking going by Annexure-1 complaint as well as the contents of Annexure-III charge sheet, contends the counsel.
The learned counsel also relies on judgments rendered by the Hon’ble Supreme Court in Hira Lal Hari Lal Bhagwati v. C.B.I. New Delhi [(2003)5 SCC 257] and Vesa Holdings P. Ltd. and Anr. v. State of Kerala and Others [(2015)8 SCC 293]. However, on going through the legal prepositions as laid down by the Hon’ble Supreme Court in the above
judgments, it can be seen that the factual situation mentioned therein were completely different from the case at hand. The cases
considered in the said judgments were pertaining to limited number of transactions between the accused and the de facto complainant. The question of entrustment was considered in the light of such transactions. On the other hand, in this case, the petitioner was entrusted with the responsibilities as an employee of the 2nd respondent organization
and the misappropriation was committed by him CRL.MC. No.1650 of 2013 6 while he was discharging his functions and
responsibilities in his official capacity. Since the aforesaid entrustment was in the course of his employment, which was a continuing transaction, the question of dishonest intention is a matter of evidence and that can be decided during the course of trial alone. No conclusion in respect of the same can be arrived at, on the basis of the materials placed before this court at the moment. In other words, the said question cannot be considered in a proceedings under Section 482 of Cr.PC and thus the contention put forward by the learned counsel for the petitioner is beyond the scope of this proceeding.
7. Another offence alleged against the
petitioner is under Section 477A of IPC. The aforesaid provision deals with falsification of account at the instance of a clerk, officer or servant employed by an organization. Going through the contents of Annexure-III charge sheet and
CRL.MC. No.1650 of 2013 7 Annexure-1 complaint, I am of the view that the averments made therein are sufficient to attract prima facie case under the aforesaid provision. The learned counsel for the petitioner brought my attention to the payment made by him as evidenced by Annexure-IV, the communication issued by the 2nd respondent and Annexure-V, the receipt issued by
them evidencing the payment of the amount allegedly misappropriated by him along with penalty at three times thereof. Reliance upon the said documents were to canvass the proposition that, the 2nd respondent has no subsisting grievances. However, the contents of the aforesaid documents do not indicate a settlement from the part of the 2nd respondent. The aforesaid documents only indicate the payments made by the petitioner to the 2nd respondent to compensate the loss suffered by them. Subsequent payments effected by the petitioner would not in any manner absolve the petitioner from the offence under Section 477A of IPC particularly because, the 2nd respondent has
CRL.MC. No.1650 of 2013 8 not expressly made any averment to the effect that the matter has been settled and had agreed to terminate the proceedings by invoking the inherent powers of this Court. A statement has been placed on record by the 2nd respondent acknowledging the receipt of the amount, but, the said document also does not indicate any settlement from the side of the 2nd respondent.
8. Yet another contention put forward by the
learned counsel for the petitioner is that as per the normal procedure in respect of an empanelled conductor, he can be relieved from the duty after undertaking the trip only after submitting the daily collection, waybill and ticket rack to the cash counter. It was the duty of the officer collecting the same to verify the said documents to ensure that the daily collection shown in the waybill matches with the remaining tickets in the ticket rack. In this case, as the officer who collected the aforesaid documents, had not CRL.MC. No.1650 of 2013 9 expressed any doubt as to the accounts and amounts provided by the petitioner, and hence the allegation as contained in Annexure-III is highly improbable. However, this is a pure question of fact, which cannot be decided in a proceeding of this nature. It can only be established during the course of a full fledged trial.
9. Another contention put forward by the learned counsel for the petitioner is relating to the delay in trial. He points out that the F.I.R.
is of the year,2004 and even now the same is pending trial and the delay caused prejudice to the petitioner. On that ground also, invocation of powers of this Court under Section 482 was sought for. However, I am not inclined to accept the same. In this case, Annexure-1 complaint was submitted on 14.7.2004 and a final report in this regard is seen submitted on 18.2.2005. The cognizance was also taken in the year, 2005. In CRL.MC. No.1650 of 2013 10 such circumstances, the petitioner cannot contend that there was delay on the part of prosecution. In the above circumstances, I find that
Annexure-III charge sheet contains basic ingredients of the offences punishable under Section 420 and 477A of IPC, at least prima-
facie. In such circumstances, I am of the view that this is not a proper case to be considered under Section 482 of Cr.PC and accordingly this Crl.M.C. is dismissed. However, it is made clear that, findings in this order, are prima facie in nature and are intended only for the consideration of the petition under Section 482 of Cr.P.C. The petitioner shall be at liberty to raise all his contentions before the trial court, which shall be considered by the trial court in accordance with law, untrammeled by any of the observations made herein. Sd/- pkk ZIYAD RAHMAN A.A., JUDGE CRL.MC. No.1650 of 2013 11 APPENDIX OF CRL.MC 1650/2013 PETITIONER ANNEXURE
ANNEXURE-I: THE COPY OF COMPLAINT DATED 14.07.2004. ANNEXURE-II: THE COPY OF FIR DATED MAVELIKARA POLICE STATION. ANNEXURE-III: THE COPY OF FINAL REPORT DATED 25/11/2004 IN THE IMPUGNED CRIME. ANNEXURE-IV: THE COPY OF COMMUNICATION DATED 14.11.2011 FROM SECOND RESPONDENT TO PETITIONER. ANNEXURE-V: THE COPY OF RECEIPT DATED RS.2,17,928/-.
//TRUE COPY// Sd/- P.S. to JUDGE