IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2423 of 2008()
1. KONNOLA YOUSEF, S/O.K.MOIDEENKUTTY HAJI,
... Petitioner
2. KONNOLA ABDUL SAMAD,
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
3. THE BRANCH MANAGER, MALAPPURAM SERVICE
For Petitioner :SRIC.M.MOHAMMED IQUABAL
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice R.BASANT
Dated :26/11/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 2423 of 2008
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Dated this the 26th day of November, 2008
ORDER
The petitioners are accused 1 and 2 and they face
allegation in a crime for offences punishable, inter alia,
under Secs.420, 465 and 471 IPC. Some of the offences
are not compoundable. The crux of the allegations
against the petitioners is that they availed a loan from the
3rd respondent – a Co-operative Bank. The loan was
availed offering certain sureties who produced their
documents as security. Those documents were of the
properties of respondents 4 and 5 herein. Those
documents were pledged before the bank in the name of
the sureties. The loan was advanced and amounts were
availed by the accused. There was default in repayment
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and arbitration proceedings were initiated before the
authority (R2) under the Kerala Co-operative Societies Act.
In the course of that proceedings, it was contended by
respondents 4 and 5 that they were not the ones who
executed the documents. Some persons had impersonated
them and had executed the documents as sureties in their
absence. They were not available in India and did not and
could not have executed the relevant documents, it was
contended.
2. Respondent No.2, on being satisfied about the
allegations raised, filed a complaint before the police. The
crux of the complaint is that the bank has been defrauded
and the funds have been siphoned out from the coffers of
the Bank fraudulently and dishonestly. The petitioners have
now come before this Court. It is submitted that the 3rd
respondent – Bank, or respondents 4 and 5 – the alleged
sureties, have no grievance now and they have compounded
the offences allegedly committed by the petitioners.
Inasmuch as they have compounded the offences, the
powers under Sec.482 Cr.P.C. may be invoked and the
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proceedings may be brought to premature termination,
contends the learned counsel for the petitioners.
3. Respondents 3, 4 and 5 have entered appearance
and have confirmed that they have no objection against the
quashing of the proceedings accepting the composition.
4. In the nature of the allegations raised, it was felt by
this Court that the response of the 2nd respondent must be
ascertained. The learned Public Prosecutor, after taking
instructions, reports that the 2nd respondent is not willing
to compound the proceedings and to get the proceedings
quashed. The learned Public Prosecutor submits that this
cannot be reckoned as an offence which is personal and
private between the petitioners herein and respondents 3
to 5. The Bank functions under the Kerala Co-operative
Societies Act. The offence has been committed in respect
of the affairs of the Co-operative Bank. Larger issues are
involved. Money belonging to the members of the Co-
operative Society have been fraudulently siphoned out from
the coffers of the Bank by the culpable acts of the
petitioners and respondents 3 to 5. Serious view is bound
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to be taken. In any view of the matter, it cannot be
assumed that the dispute is one which is private and
personal between the parties. The 2nd respondent has a
duty as an official of the Co-operative Societies to safeguard
the true interests of the Co-operative Bank including the 3rd
respondent and the fact that the 3rd respondent has
compounded the non-compoundable offences may not be
reckoned as a sufficient justification to quash the
prosecution for the offences punishable under Secs.465 and
471 IPC. The learned Public Prosecutor submits that, in
these circumstances, the invocation of the jurisdiction
under Sec.482 Cr.P.C. is totally unjustified.
5. I find merit in the opposition raised by the learned
Public Prosecutor on behalf of the State and the 2nd
respondent – the official of the Co-operative Department. I
am satisfied in the nature of the allegations that the mere
fact that the petitioners as also respondents 3 to 5 have
chosen to come to terms is not sufficient reason to accept
the composition and invoke the jurisdiction under Sec.482
Cr.P.C. I find merit in the contention that the Bank and its
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officials if they were knowingly parties to the fraud may
themselves be liable to face prosecutions as they may have
committed the dishonest acts in respect of the affairs of the
Bank. It is not necessary for me to delve deeper into that
aspect. Suffice it to say that I am not persuaded to invoke
the extraordinary inherent jurisdiction under Sec.482
Cr.P.C.
6. The learned counsel for the petitioners submits that
the investigation though commenced as early as in 1998,
final report has not been filed. I am satisfied that the
Investigating Officer must complete the investigation as
expeditiously as possible.
7. With the above observations, this Crl.M.C. is
dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge
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R. BASANT, J.
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Crl.M.C. No. 2423 of 2008
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Dated this the 25th day of September, 2008
ORDER
The prayer is to quash the proceedings invoking the
extraordinary inherent jurisdiction under Sec.482 Cr.P.C. as
enabled by the dictum in Madhan Mohan Abbot v. State of
Punjab (2008 AIR SCW 2287). The learned counsel for the
respondent/complainant has entered appearance and confirms
settlement/composition. Notice given and the learned Public
Prosecutor shall take instructions. Call on 7/10/08. The
learned Public Prosecutor undertakes that the petitioners shall
not be arrested till that date. The said undertaking is accepted.
(R. BASANT, JUDGE)
Nan/
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