IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2448 of 2006()
1. T.K. KOYA, AGED 52 YEARS, S/O. KAREEM,
... Petitioner
Vs
1. STATE OF KERALA (REP. BY
... Respondent
2. HARIKUMAR @ OMANAKUTTAN,
For Petitioner :SRI.K.A.JALEEL
For Respondent :SMT.S.K.DEVI
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :14/08/2009
O R D E R
C.T. RAVIKUMAR, J.
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CRL. M.C. NO.2448 OF 2006
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Dated this the 14th day of August, 2009
O R D E R
Petitioner is the second accused in C.C.No.388/04 on the file of the Judicial
First Class Magistrate Court, Ettumanoor. Along with the first accused
therein he is facing indictment under Section 420 read with 34 of the I.P.C.
Annexure-B complaint was filed by the defacto complainant/second
respondent herein, before that court and it was forwarded for investigation
under Section 156(3) of the Code of Criminal Procedure. Crime No.212/02
of Ettumanoor Police Station was consequently registered and thereafter the
investigation was handed over to the Crime Detachment, Cochin City.
During such investigation it was revealed that the petitioner had also a role
in the commission of the alleged crime and accordingly he was also joined
as an accused and Annexure-C Final Report was submitted before the
Judicial First Class Magistrate Court, Ettumanoor. As per Annexure-C
final report on 25.4.2002, the petitioner and the first accused in
C.C.No.388/04 had approached the second respondent herein and
demanded Rs.40,000/- promising to supply fish for the said amount. They
came to him in a Maruti Omni Van bearing Registration No.KL-4/J-2588
owned by CW 4 and the petitioner herein and the first accused made the
Crl.M.C.No.2448 of 2006 2
second respondent believe that the said van belongs to them and handed
over to him the said van and also some blank cheques as security. By
making such fraudulent and dishonest promise and assurance they induced
him to deliver Rs.40,000/- and 36 fish boxes worth Rs.450/- each. This is
the sum and substance of the allegations incorporated in Annexure-C
charge sheet. The above Crl.M.C has been filed by the petitioner therein
with the prayer to quash Annexure-C police charge sheet, in C.C.No.388/04
on the file of the Judicial First Class Magistrate Court, Ettumanoor.
2. The main contention of the petitioner is that he was not arrayed
as an accused either in Annexure-A F.I.R or in Annexure-B private
complaint. According to him, he was implicated as an accused on account
of grave misunderstanding by the police without any proper investigation.
Fraudulent intention at inception cannot be inferred from the allegations
incorporated in Annexure-C as against him. It is contended that even if the
allegations incorporated in Annexure-C charge sheet are taken as true and
correct in their entirety, they will constitute only a civil wrong and not a
criminal offence as alleged by the second respondent.
3. With respect to the first contention, there cannot be any doubt
that the mere absence of name in F.I.R or in a complaint cannot divest the
Crl.M.C.No.2448 of 2006 3
power of the investigating officer to join another person also in the array of
accused if such person is found to have played a role in the commission of
offence, during investigation. F.I.R only sets criminal law in motion and
thereby requiring the investigating agency to take steps and make efforts for
investigating the alleged crime. Therefore, non-mentioning of one’s name
as accused in the complaint or in the F.I.R would not be of any consequence
if the circumstances of the case justified the same and also his/her inclusion
as accused thereafter. It, by itself, cannot be ground for rejecting the
prosecution case. The allegations incorporated Annexure-C charge sheet
prima facie suggests that the petitioner had played a role in the commission
of the offence. Therefore, I cannot uphold the contention of petitioner that
Annexure-C charge is liable to be interfered with for the simple reason that
his name did not appear in Annexure-A and Annexure-B.
4. As regards the second contention of the petitioner relating the
absence of ingredients to constitute the offence under Section 420 of the
I.P.C it is to be noticed that Annexure-C carries accusation of deception
preceeding fraudulent inducement. When once Annexure-C discloses an
offence, as alleged, the inherent jurisdiction cannot be invoked. So also this
Court cannot embark upon an enquiry as to the veracity or adequacy of the
supporting materials. The mere fact a civil remedy may also lie on the same
Crl.M.C.No.2448 of 2006 4
set of allegations cannot be a reason for invoking the inherent jurisdiction
in the facts and circumstances obtained in this case.
5. The end product of these elaborate discussions is essentially
declination to exercise the inherent jurisdiction under Section 482 of the
Code of Criminal Procedure.
Accordingly, this Crl.M.C is dismissed.
(C.T. RAVIKUMAR, JUDGE)
spc