IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4467 of 2010()
1. A.K.LINISH, S/O.VIJAYAN,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. C.D.BOBY, S/O.DEVASSIA,
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.T.SHAJITH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/11/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
---------------------------------------------------------------
CRL.M.C.NO.4060,4467, & 4058 OF 2010
----------------------------------------------------------------
Dated 22nd November, 2010
O R D E R
Petitioner is the first accused in
C.C.92/2010 and the sole accused in
C.C.93/2010 on the file of Judicial First
Class Magistrate’s Court-VI, Kozhikode. These
petitions are filed under Section 482 of Code
of Criminal Procedure. Crl.M.C.4058/2010 is
filed to quash Annexure-A9 charge framed by
the learned Magistrate in C.C.92/2010.
Crl.M.C.4060/2010 is filed to quash Annexure-
A9 charge in C.C.93/2010. Crl.M.C.4467/2010
is filed to quash Annexure-A4 report and the
order passed by the learned Magistrate
thereon. The case had a checkered history.
Annexure-A1 final report was submitted by
Circle Inspector of Police, Kasaba Police
Crmc,4467,4060 &4058/2010 2
Station, Kozhikode on 29/4/2002 in crime
No.310/2001 registered for the offence under
Section 408, 419, 420, 468 and 471 read with
Section 34 of Indian Penal Code against four
accused. Along with the final report, two
charges were submitted, one as against first
accused alone and the second as against all the
four accused. Allegation as against the first
accused alone was that he misappropriated
Rs.30,000/- out Rs.80,000/- and Rs.50,000/- out
of Rs.1,00,000/- which were entrusted to him in
his capacity as the Accountant-cum-Manager of
Chemmannur Jwellers, Kozhikode, to be deposited
in account No.835 in Mavoor Road branch of
Syndicate Bank. Allegation is that out of
Rs.80,000/- entrusted on 8/9/2001, only
Rs.50,000/- was remitted, but the receipt
obtained by the bank was altered to make it
appear that Rs.80,000/- was deposited. It is
Crmc,4467,4060 &4058/2010 3
also alleged that on 14/9/2001 out of
Rs.1,00,000/- entrusted, only Rs.50,000/- was
deposited but entry was altered in the counter
foil receipt to appear that Rs.1,00,000/- was
deposited. The allegation is that first accused
thereby misappropriated Rs.80,000/- and
committed the offences under Sections 408 and
468 of Indian Penal Code. In the second charge,
it is alleged that the four accused committed
the offences under Sections 408 419, 420, 468
and 471 read Section 34 of Indian Penal Code
alleging that the first accused, with the
intention to cheat Chemmannur Jwellers, got
printed duplicate receipts of Chemmannur
Jwellery gold purchase scheme and in
furtherance of their common intention with the
other accused and with the aid of second
accused, procured details of the members of
the scheme, forged receipts in the name with
Crmc,4467,4060 &4058/2010 4
the aid of accused 2 to 4 and by producing
those receipts, induced the jwellers to pay
money and misappropriated the money and
committed the offences. Learned Magistrate
took cognizance of the offences in
C.C.75/2002. The charge was framed in Malayalam
against all the accused together. Accused 2 to
4 challenged that order before this court in
Crl.R.P.1872/2007. By Annexure-A3 order dated
20/6/2007, this court quashed the charge and
directed the Magistrate to frame charge afresh
or to discharge the accused, after hearing the
prosecutor and the accused. Learned Magistrate
thereafter framed Annexure-A4 charge in English
on 19/11/2007. That charge was framed in two
separate parts. First part relates to first
accused alone and the second part relates to
all the accused. First part was named as first
charge and second part as second charge.
Crmc,4467,4060 &4058/2010 5
Accused 2 to 4 challenged that charge again
before this court by filing Crl.M.C.248/2008.
By Annexure-A5 order this court quashed that
charge finding that learned Magistrate should
have assigned two separate C.C. numbers for
each charge and should not have framed two
separate charges in one case. The learned
Magistrate was directed to assign separate
C.C.numbers for each of the charge sheets
submitted namely, as against the first accused
in one case and as against accused 1 to 4 in
the other case. Special Prosecutor thereafter
submitted Annexure-A6 charge separately
against first accused in one case and against
accused 1 to 4 in other case. Learned Chief
Judicial Magistrate took cognizance of the
offences against first accused alone as
C.C.75/2002, which was the original number
assigned and as against accused 1 to 4, in
Crmc,4467,4060 &4058/2010 6
C.C.129/2009. When cognizance was taken, first
accused filed Crl.M.C.2457/2010 to quash the
charge in both the cases. By Annexure-A7
order, Crl.M.C.2457/2010 was disposed
permitting first accused to seek discharge, in
absentia, under Section 239 of Code of
Criminal Procedure. That order was passed on
2/7/2010. Chief Judicial Magistrate thereafter
transferred the case to Judicial First Class
Magistrate’s Court-VI, Kozhikode. Learned
Magistrate took the case on file against first
accused as C.C.93/2010 and against accused 1 to
4 as C.C.92/2010. First accused filed
Crl.M.C.3576/2010 challenging the cognizance
taken in C.C.92/2010 contending that separate
copies of the document relied on by the
prosecution were not supplied. First accused
also filed Crl.M.C.3577/2010 raising the same
allegations in C.c.93/2010. Accused 2 to 4
Crmc,4467,4060 &4058/2010 7
filed Crl.M.C.3561/2010 raising similar
contentions. By Annexure-A8 common order dated
20/08/2010, petitions were dismissed holding
that the case already stands scheduled and if
accused did not get copies, they are entitled
to bring it to the notice of the Magistrate
who will give necessary directions. Learned
Magistrate framed Annexure-A9 charge in
C.C.93/2010 and Annexure-A10 charge in
C.C.92/2010. Though in C.C.93/2010 prosecution
case is with respect to misappropriation of
parts of the amount misappropriated by the sole
accused on 8/9/2001 and 14/9/2001, in Annexure-
A9 charge framed by the learned Magistrate,
charge thirdly to sixthly relate to the
prosecution case in C.C.92/2010. In
C.C.92/2010, same charges were incorporated in
Annexure-A10 charge. Special Prosecutor finding
that charge thirdly to sixthly in C.C.93/2010
Crmc,4467,4060 &4058/2010 8
should not have been framed by the learned
Magistrate, filed Annexure-A4 report in
Crl.M.C.4467/2010 to delete those charges and
to frame specific charge for the offence under
Section 420 of Indian Penal Code. According to
the petitioner, it was objected before learned
Magistrate but by a non speaking order, learned
Magistrate allowed that petition.
Crl.M.C.4467/2010 is filed to quash the said
report and the order passed by learned
Magistrate Crl.M.C.4060/2010 and 4058/2010 were
filed to quash Annexure-A9 and A10 charges.
2. Learned counsel appearing for the
petitioner, learned Public Prosecutor and
learned counsel appearing for third respondent
were heard.
3. Though learned counsel appearing for
petitioners argued that entire Annexures-A9 and
10 charges are erroneous and learned
Crmc,4467,4060 &4058/2010 9
Magistrate could not have split up and
numbered two separate cases and in one case
and should not have allowed Annexure-A4 report
without a speaking order, on going through the
orders passed by this court earlier and the
records, I find no illegality in numbering two
cases or proceeding as against first accused
in C.C.93/2010 and as against accused 1 to 4 in
C.C.92/2010.
4. Though one crime was registered,
it is not the law that more than one charge
cannot be submitted in that crime. After
investigation, it was found that first accused
committed certain offences separately and
first accused along with the other accused
committed other offences which are not inter
connected and are distinct and separate. Case
in C.C.93/2010 is that on 8/9/2001 petitioner
was entrusted with RS.80,000/- and instead of
Crmc,4467,4060 &4058/2010 10
depositing Rs.80,000/-, he deposited only
Rs.50,000/-. It is also the case that on
14/9/2001 petitioner was entrusted with
Rs.1,00,000/- and he deposited only
Rs.50,000/-. It is the case that receipts
obtained on 8/9/2001 and 14/9/2001 were
altered by entering Rs.80,000/-instead of
Rs.50,000/- on 8/9/2001 and Rs.1,00,000/-
instead of Rs.50,000/- on 14/9/2001 and first
accused misappropriated Rs.8,000/- and thereby
committed the offences. There is no allegation
as against accused 2 to 4 with respect to that
aspect. It is in such circumstances,
investigating officer submitted a separate
charge though without taking note of it,
learned Magistrate has taken cognizance
against all in one case. This court finding
the said defect by Annexure-A5 order directed
learned Magistrate to assign two separate C.C
Crmc,4467,4060 &4058/2010 11
numbers in respect of the charges. It is
pursuant to that direction, first charge
against all the accused was taken on file as
C.C.129/2009 and as against sole accused
C.C.75/2002. The cases were transferred to
Judicial First Class Magistrate’s Court-VI,
Kozhikode by Chief Judicial Magistrate where
the cases were originally pending. They are now
numbered as C.C.92/2010 and C.C.93/2010.
Therefore, I find no reason to interfere with
the order of the learned Magistrate assigning
two separate numbers.
5. Though in C.C.93/2010 prosecution
case is limited to misappropriation and
forgery with regard to Rs.80,000/- and
Rs.1,00,000/- entrusted to the petitioner on
8/9/2001 and 14/9/2001, in Annexure-A9 charge
learned Magistrate has wrongly included the
charge which should have been framed only in
Crmc,4467,4060 &4058/2010 12
C.C.92/2010. It is in such circumstances,
Special Prosecutor subsequently filed report
for deleting those charges. On hearing the
learned counsel appearing for the petitioner
and Public Prosecutor, it is clear that
charges thirdly to sixthly in Annexure-A9,
charge framed in C.C.93/2010 do not arise at
all. Hence, exercising the inherent powers
under Section 482 of Code of Criminal
Procedure, charge thirdly to sixthly in
Annexure-A9 charge in C.C.93/2010 is quashed.
There is no illegality in Annexure-A10 charge
framed in C.C.92/2010.
6. The Only other grievance is against
Annexure-A4 report and the order passed
therein. Annexure-A4 in Crl.M.C.4467/2010 shows
that when Annexure-A4 report was filed by
Special Prosecutor, learned Magistrate
recording that both sides were heard,
Crmc,4467,4060 &4058/2010 13
allowed the application without a speaking
order. As it is not a speaking order, order
dated 1/11/2010 in the report submitted by the
Special Prosecutor in C.C.93/2010 on 1/11/2010
is quashed. In view of the order quashing
charges thirdly to sixthly in C.C.93/2001, it
may not necessary for the learned Magistrate to
consider the said prayer in Annexure-A4. But as
Special Prosecutor has a case that charge for
the offence under Section 420 and 471 of Indian
Penal Code also should be framed and it was
omitted to be framed, learned Magistrate
necessarily has to consider Annexure-A4 afresh
after, hearing both the Special Prosecutor and
the accused. learned Magistrate has to pass
appropriate order thereafter in accordance with
law.
Petitions are allowed in part. Charges
thirdly to sixthly in C.C.93/2010 on the file
Crmc,4467,4060 &4058/2010 14
of Judicial First Class Magistrate’s Court-VI,
Kozhikode is quashed. Order passed by the
Magistrate on Annexure-A4 report is quashed.
Magistrate is directed to dispose Annexure-A4
report afresh.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.