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A. Nijam Shah v/s State of Kerala, Represented by The Public Prosecutor, High Court of Kerala, Ernakulam & Others

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    Crl.MC. No. 228 of 2016

    Decided On, 14 July 2020

    At, High Court of Kerala


    For the Petitioner: Kaleeswaram Raj, Advocate. For the Respondents: K.B. Udayakumar, P.P., R1, Benoj C. Augustin, Nagaraj Narayanan, Saijo Hassan, Vishnu Bhuvanendran, Advocates.

Judgment Text

1. Petitioner is accused No.2 in C.C. No.1636/2015 on the file of Judicial First Class Magistrate, Kattakkada instituted on Annexure-I private complaint filed by second respondent for commission of offences punishable under Sections 379, 381, 454, 414 read with Section 34 of the Indian Penal Code,1860(for short, 'the IPC'). Petitioner was working as a Bench Clerk in Judicial First Class Magistrate, Kattakada. Second respondent had filed C.C. No.490/2013 against the third respondent for prosecuting him for offence punishable under Section 138 of the Negotiable Instruments Act,1881(for short, 'the NI Act') before the very same court.

2. The allegation against the petitioner is that while third respondent was yet to appear in C.C.No.490/2013 and the case was omitted to be called in one of the postings, it came to be noticed that the entire case bundle was missing. Warrant ordered by the court as against the third respondent was yet to be prepared for being sent for execution. According to the second respondent, the petitioner and third respondent so conspired together and committed theft of the records in C.C. No.490/2013 missing that third respondent could be screened from prosecution and saved from the charge under Section 138 of NI Act.

3. The court below took cognizance of offences punishable only under Sections 120B, 381 and 201 IPC, despite the complaint having been instituted with respect to offences punishable under Sections 379, 381, 454, 414 read with Section 34 IPC.

4. I heard the learned counsel for the petitioner and the learned counsel for respondent No.3. Even though second respondent was served, no appearance was made on her behalf. The learned Public Prosecutor was also heard in the matter.

5. The contention raised by the learned counsel for the petitioner is that the averments in Annexure-I complaint even if taken in its entirety are not capable enough to constitute an offence punishable either under Section 120B or section 201 IPC at all. Further, it is contented that false and vexatious complaint has been launched against the petitioner for no good reason. It is also argued that no materials have been brought forth on record to connect the petitioner with the alleged crime at all.

6. On reading Annexure-I complaint as a whole, I am not in a position to find out any clear allegation as to the commission of criminal conspiracy. There is only a general statement that petitioner and third respondent in furtherance of a common intention committed theft of the case bundle. This allegation is not capable enough to satisfy the definition of criminal conspiracy.

7. There is no prima facie material to indicate that any offence under Section 120B was committed by the petitioner after hatching criminal conspiracy with third respondent. When sworn statement of second respondent was recorded under Section 200 of the Code of Criminal Procedure, 1973, she stated that on a particular day, third respondent went to her house and told her that the missing records in C.C. No.490/2013 were not going to be traced at all, since he had taken all necessary steps for escaping from criminal liability. It is pertinent to note that in sworn statement of the second respondent, there is not even a whisper alleging involvement of petitioner in the alleged transaction. Moreover, Annexure-I complaint does not disclose any allegation that third respondent ever went to the house of the second respondent and made the above disclosure. Further, there is no witness also cited to prove that three was any conspiracy. In short, it is very clear that materials on record are not capable enough to make out a prima facie case of criminal conspiracy. Further, there appears to be no reason for the second respondent to continue prosecution in C.C.No.1636/2015 inasmuch as the missing records were subsequently traced out as reported by the learned Magistrate, Kattakkada by her report dated 21.10.2017.

8. For all these reasons together, I am satisfied that Annexure-I complaint so f

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ar as petitioner is concerned, is only to be quashed. In the result, Crl.M.C. is allowed quashing Annexure-I complaint in C.C. No.1636/2015. However, there will be a direction to the learned Magistrate, Kattakkada to dispose of C.C.No.490/2013 within a period of three months from the date of receipt of a copy of this order, if the matter has not been already disposed of. All pending interlocutory applications will stand closed.