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