High Court Kerala High Court

M.Velayudhan vs The State Of Kerala on 28 August, 2008

Kerala High Court
M.Velayudhan vs The State Of Kerala on 28 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3227 of 2005()


1. M.VELAYUDHAN, S/O.KUNCHOKU,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED
                       ...       Respondent

2. LALITHA SATHYAN, W/O.SATHYAN,

                For Petitioner  :SRI.K.P.DANDAPANI (SR.)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.GIRI

 Dated :28/08/2008

 O R D E R
                     V. GIRI, J.
-----------------------------------------------
        Criminal M.C. No.3227 OF 2005 (C)
-----------------------------------------------
     Dated this the 28th day of August, 2008

                      O R D E R

The accused in C.C.611/2004 on the files of

Judicial First Class Magistrate Court, Vadakara is the

petitioner in this petition under Section 482 of

Cr.P.C. The first accused/petitioner seeks to quash the

proceedings in C.C.611/2004.

2. Annexure B is the complaint leading to

C.C.611/2004. A perusal of the complaint shows that the

case of the complainant, broadly, was that she had

joined as a subscriber in a chit conducted by

M/s.Sudarsan Chits (India) Limited. The fourth accused

was the Branch Manager of the said company at Vadakara.

The fourth accused approached the complainant at her

house. Her husband was also present at that time in

their house. The complainant agreed to join the chit.

Accordingly, the complainant became a subscriber of the

Crl.M.C. No.3227/2005

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chit. Instalments were remitted. The tenure of the chit

was later completed and the complainant made demand to

the second respondent for the sala amount. This was not

given. Thereafter, complainant made several requests.

3. The accused 2 and 3 had, on several occasions,

agreed to pay the amount; but that was not done. In so

far as the first accused is concerned, the specific

allegation seems to be that on 27-7-2001, the second

accused had told the complainant that accused 1 and 3

had sanctioned the payment due to the complainant, the

first accused had been intimated about this and the

first accused paid the amount to the second accused for

onward payment to the complainant. The complaint does

not contain any specific allegation that the first

accused had, at any point of time, specifically agreed

to pay the amount to the complainant, while at the time

of joining the chit or in the course of demanding

payment of the amount due to the complainant after the

completion of the chit. Apparently, the first accused

Crl.M.C. No.3227/2005

– 3 –

seems to have been arrayed as an accused on the premise

of the complaint that he was the Managing Director of

the company, which had conducted the chit.

4. In this application under Section 482 of Cr.P.C.,

two grounds have been essentially taken up in seeking

to quash the proceedings of court below, so far as the

first accused is concerned. Firstly, it is contended

that the first accused was not the Managing Director of

the Company at the relevant point of time. Reference is

made to Annexure C, which seems to be the list of

Directors from 1999 onwards. Secondly, it is contended

that a reading of the entire complaint will not reveal

any allegations against the first accused making out an

offence under Section 420 of the Indial Penal Code.

5. I heard learned Senior counsel Sri.K.Dandapani

appearing on behalf of the petitioner. There is no

appearance on behalf of the complainant.

Crl.M.C. No.3227/2005

– 4 –

6. I have gone through Annexure B complaint. In so

far as the contention that the first accused has

nothing to do in the chit company is concerned, I am of

the view that it may not be possible, under Section 482

of Cr.P.C. to decide the said aspect. But in so far as

the second contention is concerned, I find force in the

submission made by Mr.Dandapani that there is no

allegation in the complaint, which will specifically

make out a case against the first accused under Section

420 of the Indian Penal Code. Mere non-payment or delay

in the payment of amounts payable to the subscriber of

a chit by the foreman will not constitute an offence

under Section 420 of Indian Penal Code. The offence

punishable under Section 420 would be made, if there

are allegations and prima facie material to show that

the subscriber/complainant was compelled to join the

chit on a false promise, and that the complainant would

not have joined the chit, but for the said promise. It

is also necessary to allege that the complainant had

suffered detriment or wrongful loss on account of the

Crl.M.C. No.3227/2005

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false promise made by the accused.

7. The allegation broadly answering the above

description, seems to be made in the complaint against

the fourth accused. At any rate, there is no

allegation, whatsoever, of the above nature or which

would satisfy the ingredients of Section 420 of the

Indian Penal Code, as regards the first accused.

Apparently, the complainant has unnecessarily dragged

the first accused into the proceedings, without

identifying the person who is responsible for the chit

company possibly for the purpose of more expeditious

settlement of her claim. But it will not satisfy the

requirements in the court.

8. I am satisfied that it would be abuse of process

of the Court, if the criminal proceedings is continued,

in so far as the first accused is concerned.

9. Mr. Dandapani submits that, as a matter of fact,

payments which are due to the complainant and other

Crl.M.C. No.3227/2005

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aggrieved subscribers have been made and is being made

on a pari passu basis. He submits that the Supreme

Court appointed Justice Mr.Thulasidas (a former Judge

of this Court) as Additional Director of the company

and due payments have been made to the complainant

through the office of Justice Mr. Thulasidas. Recently,

she has accepted the same. I would have gone into more

details of this matter, had there been a representation

on behalf of the complainant. But I take note of the

fact that there is no representation on behalf of the

complainant and accept this as probabilising the case

of the accused in this regard.

For all these reasons, the Criminal M.C. is

allowed. The proceedings in C.C.611/2004 on the files

of the Judicial First Class Magistrate, Vadakara are

quashed, in so far as the first accused is concerned.

Sd/-

V. GIRI, JUDGE
skr
// True copy //
P.A. to Judge.