High Court Kerala High Court

K.M.Thomas vs State Of Kerala Rep.By Public … on 9 February, 2011

Kerala High Court
K.M.Thomas vs State Of Kerala Rep.By Public … on 9 February, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 180 of 2011()


1. K.M.THOMAS, AGED 50 YEARS,S/O.K.T.MATHEW
                      ...  Petitioner
2. C.M.RAJAPPA, CHAIRMAN, PINNACLE
3. ANURADHA RAO, CHAIRPERSON, ST.JOHN'S
4. NOORULLA SHERIFF MANAGING DIRECTOR, HINA

                        Vs



1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR
                       ...       Respondent

2. SMT.NAGARATNAMMA, CHAIRPERSON, ACHARYA

3. M.CHANDRAPPA, CHAIRMAN, SLV COLLEGE OF

4. JISHA, D/O.VARGHESE, CHERUVATHOOR HOUSE,

                For Petitioner  :SRI.ABRAHAM P.GEORGE

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :09/02/2011

 O R D E R
                    THOMAS P JOSEPH, J.

                   ----------------------------------------

               Crl.M.C.Nos.180 and 210 of 2011

                   ---------------------------------------

              Dated this 09th day of February, 2011

                                 ORDER

Petitioners are accused in C.C.Nos.3486 of 2006 and 2867

of 2005 of the court of learned Judicial First Class Magistrate-I,

Ernakulam. In the former case offences attributed against

petitioners and others are punishable under Secs.406, 420 and

477 r/w. Sec.34 of the Indian Penal Code (for short, “the Code”)

while in the latter, it is under Secs.406 and 420 r/w Sec.34 of the

Code. First petitioner in both the cases is running an educational

agency at Palarivattom under the name and style, “Care and

Concern”. Petitioner Nos. 2 to 4 in Crl.M.C.No.180 of 2011 are

the second, third and fifth accused in C.C.No.3486 of 2006 while

respondent Nos.2 and 3 therein are accused Nos.4 and 6. In

Crl.M.C.No.210 of 2011 arising from C.C.No.2867 of 2005 first

petitioner as aforesaid is the first accused and second and third

petitioner are the second and third accused. The case is that first

petitioner in these cases offering to arrange admission for BSc

Nursing and Nursing Diploma courses at Bangalore in

institutions affiliated to and recognised by the University and run

by petitioner Nos.2 and 4 and respondent Nos.2 and 3 in

Crl.M.C.Nos.180 and 210 of 2011
-: 2 :-

Crl.M.C.No.180 of 2011 and the third petitioner in

Crl.M.C.No.210 of 2011 and promising that on admission

necessary assistance will be made to obtain education loan for

the courses, collected money from the de facto complainant and

others but, failed to give admission to them in recognised and

affiliated institutions or to arrange educational loan, the de facto

complainant and others had to withdraw from the institutions

from where they were given admissions but petitioners and

others did not refund the money they had collected from the de

facto complainant and others and thereby committed offences as

alleged. Learned counsel for petitioners contend that it is

incorrect to say that admission was given in unrecognised or non

affiliated institutions. Learned counsel explains that so far as

BSc Nursing course is concerned, the institutions are to get

affiliation from the University while so far as Nursing Diploma

course is concerned such institutions are to get recognition from

the Karnataka Nursing Parishath (Board). Learned counsel has

invited my attention to the documents produced along with these

petitions to show that affiliation/recognition has been obtained

for all institutions where BSc Nursing course was run by

University concerned and for the Diploma course recognition has

been obtained from the Karnataka Nursing Parishath (Board) as

Crl.M.C.Nos.180 and 210 of 2011
-: 3 :-

the case may be but, it is without reference to those documents

that the investigating agency has submitted final report against

petitioners and others. It is pointed out that it is not due to any

fault on the part of petitioners that students did not get

educational loan. That was on account of a misunderstanding or

confusion bank authorities had on account of the basic

qualification of the de facto complainant and others. Learned

counsel submitted that so far as students from Kerala were

concerned, a pass in the pre-degree for science group was

essential while for students from elsewhere is concerned, a pass

in any course in the pre-degree was sufficient. It is pointed out

that when students were disgusted as they did not get

educational loan they withdrew from the colleges or institutions

and filed complaint based on which final report was filed.

Learned counsel submitted that there are materials to show that

petitioner and others had promised to give admission in

recognised institutions but, it is given in unrecognised

institutions but no money was returned not to say about

arranging educational loan.

2. In respect of the third respondent in Crl.M.C.No.180

of 2011 this Court by order dated January 4, 2011 in

Crl.M.C.Nos.180 and 210 of 2011
-: 4 :-

Crl.M.C.No.4813 of 2010 had directed the investigating agency

to conduct further investigation. That was because there

appeared to be some confusion as to the alleged involvement of

third respondent in the alleged incident. That situation does not

arise in these petitions. Learned counsel made a fervent plea to

quash proceedings against petitioners or to direct further

investigation. I must bear in mind that final reports were filed as

early as in 2005-2006, cognizance has been taken and learned

Magistrate has taken the cases on file in 2005-2006. After about

5-6 years, I do not consider it necessary to quash proceedings or

to order further investigation. Having regard to the facts and

circumstances of the case, appropriate course open to the

petitioner is to raise their plea/defence before the learned

Magistrate at the appropriate stage be it under Sec.239 of the

Code of Criminal Procedure (for short, “the Code”) or at the time

of trial.

3. Learned counsel has submitted that since petitioners

have not appeared in court coercive steps are pending against

them. It is also requested that petitioners may be exempted from

appearance in court since there is no dispute regarding identity

and they may be permitted to appear through counsel. I leave

that matter to be decided by the learned Magistrate having

Crl.M.C.Nos.180 and 210 of 2011
-: 5 :-

regard to the contention raised by petitioners that there is no

dispute regarding identity and in the light of the decision of the

Supreme Court in Basavaraj R. Patil and Ors. Vs. State of

Karnataka and Ors. (2000(8) SCC 740). In the circumstance,

it is only appropriate that coercive steps against petitioners will

stand in abeyance for a period of two months from this day.

Resultantly these petitions are disposed of permitting

petitioners to take up appropriate plea/defence in the trial court

be it under Sec.239 of the Code or in the trial as law provides.

Coercive steps against petitioners will stand in abeyance for a

period of two months or till petitioners appear before the learned

Magistrate seeking regular bail whichever is earlier. It is made

clear that it is open to the petitioners to move appropriate

application to withdrew the coercive steps against them and for

grant of bail to them. Such applications if preferred shall be

disposed of as early as possible having regard to the

circumstances which I have stated above and also taking into

account the fact that custody of petitioners may not be required

since final report has already been filed.

(THOMAS P JOSEPH, JUDGE)

Sbna/-