IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2721 of 2009()
1. E.T.RAGHAVAN, S/O THAMBIKUTTY,
... Petitioner
2. MALLIKA, W/O RAGHAVAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. BRANCH MANAGER,
For Petitioner :SRI.M.N.UNNIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/12/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 2721 OF 2009
===========================
Dated this the 10th day of December,2009
ORDER
Petitioners are the accused in C.C.1528/2008 on
the file of Judicial First Class Magistrate Court,
Chalakkudy taken cognizance for the offence under
section 420 read with section 34 of Indian Penal code
on Annexure 2 final report. The prosecution case is
that petitioners approached second respondent,the de
facto complainant for a loan offering to mortgage their
properties in survey Nos.1512/3, 1512/7 and believing
the representation a loan of Rs.1,80,000/- was
sanctioned. Petitioners failed to remit the amount
after remitting Rs.5,130/- on 12.3.2004 and Rs.2,650/-
on 8.6.2004 and inspite of demand the balance was not
remitted. When notice was sent to the petitioners to
remit the amount threatening action under SARFAESI Act
and the District Collector was requested to take
proceedings Tahsildar on getting report from the
Village Officer intimated that the survey number is
different from the document and the property given as
security had earlier been mortgaged to Federal Bank,
Crl.M.C.2721/2009 2
Chalakudy and Indian Bank of Housing as well as Adoor
Kuries and thereby petitioners have committed the offences
under section 420 of Indian Penal Code. This petition is
filed under section 482 of the Code of Criminal Procedure
to quash the proceedings contending that it is essentially
a civil liability.
2. Learned counsel appearing for the petitioners and
the learned Public Prosecutor were heard.
3. The argument of the learned counsel for the
petitioners is that the property has to be identified not
with reference to survey number alone but based on the
boundaries also and for the reason that survey number is
given in the title deed petitioners cannot be prosecuted
for an offence under section 420 of Indian Penal Code. The
learned counsel also argued that as the grievance of the
second respondent is non-payment of the loan amount, remedy
is to approach the civil court and not to initiate the
criminal prosecution and continuation of the proceedings is
only an abuse of process of court.
4. It is the prosecution case that but for the
inducement made by the petitioners that they are owning the
properties which were given as security, the Bank would
not have released a loan of Rs.1,80,000/- to the
petitioners. When the specific case of the prosecution is
Crl.M.C.2721/2009 3
that suppressing the existence of other loan in respect of
the very same property, petitioners give security of the
same property and induced the bank to part with the amount
and thereafter misappropriated the same without repaying
the same, it cannot be said that ingredients of an offence
is not attracted. The question whether there is
sufficient evidence to convict the petitioners or not is to
be decided in the case and it cannot be decided in a
petition under section 482 of the Code of Criminal
Procedure. Petitioners are at liberty to raise all the
contentions, at the time of trial.
Petition is disposed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006