Mohana Kurup v. Pauly Varghese

M. Sasidharan Nambiar, J.:— Petitioners are the accused in C.C No. 90/2009 on the file of Chief Judicial Magistrate's Court, Ernakulam, taken cognizance for the offences under Sections 406, 408, 409, 477A and 120B of Indian Penal Code on Annexure-A final report. Prosecution case is that petitioners were the office bearers of All Kerala Chemists and Druggists Association (AKCDA) and while so, with the dishonest intention to cheat the Association and its members, petitioners, in furtherance of their common intention and as a result of the criminal conspiracy, during the period 17.4.2007 to 11.4.2008, opened accounts in Palakkad Branch of South Malabar Gramin Bank and Edappally Branch of ICICI Bank and demand drafts and cheques, which should have been accounted to the account of AKCDA, were wrongfully accounted to the said accounts and thereby misappropriated the amounts to the extent of Rupees Eighty lakhs and thereby committed the offences. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings, now pending before the Magistrate, contending that entire disputes were settled with respondents 1 to 4, the complainants, at whose instance the case was investigated and respondents 5 and 6, the present office bearers of AKCDA.

2. A compounding petition is filed jointly by the petitioners and respondents 1 to 6 stating that entire disputes were settled with the petitioners, who were the former office bearers and respondents 1 to 4, the complainants and respondents 5 and 6, the present office bearers and respondents 1 to 4 admit that there was no misappropriation of the amounts of AKCDA as alleged and respondents 5 and 6 agreed the same. In view of the settlement, it is contended that they may be permitted to compound the offences.

3. Respondents 1 to 6 appeared through a counsel and filed Annexure-B joint affidavit reiterating the factum of settlement. Annexure-D order passed by this Court in a petition filed under Section 438 of Code of Criminal Procedure also establishes the factum of settlement was brought to the notice of this Court at that stage.

4. Learned counsel appearing for the petitioners, respondents 1 to 6 and learned Public Prosecutor were heard.

5. Prosecution case as against the petitioners is that they committed the offences as against AKCDA and its members. The allegation is that they opened two separate accounts and converted the cheques and demand drafts received in the name of AKCDA to their personal accounts and thereby misappropriated the amounts. The offences alleged are purely personal in nature as against the Association, represented by respondents 5 and 6. The case was investigated on the complaint filed by respondents 1 to 4. When compounding petition filed by the petitioners along with respondents 1 to 6 establishes that there has been a complete settlement of the disputes and the offences alleged are purely personal in nature, as held by the Apex Court in Madan Mohan Abbot v. State Of Punjab. (2008 (3) KLT 19), it is not in the interest of justice to continue the prosecution. In the light of the settlement and the joint petition filed, even if petitioners are to be tried, there is no likelihood of a successful prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution.

6. Petition is allowed. C.C No. 90/2009 on the file of Chief Judicial Magistrate's Court, Ernakulam is quashed.