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.
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Criminal M.C. No.3227 OF 2005 (C)
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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
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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
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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
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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.