ASHRAF KANCHERIYIL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is accused in CC No. 240 of 2003 of the Court of learned Judicial First Class Magistrate, Ponnani for offences punishable under S.420 r/w S.34 of the Indian Penal Code. That case arose from Crime No. 90 of 2003 of Ponnani Police Station. Charge is that on a promise to arrange visa petitioner and others collected Rs. 1,50,000/- and passport from PWs 1 to 3. Accused 1 and 2 faced trial and were acquitted by Annexure - A1, judgment dated November 29, 2007. Petitioner seeks to quash proceeding against him in view of Annexure - A1, judgment acquitting accused 1 and 2. It is submitted by learned counsel that the judgment destroys the substratum of the case of prosecution and hence in the light of the decision in Moosa v. Sub Inspector, 2006 KHC 184 : 2006 (1) KLT 552 : ILR 2006 (1) Ker. 237 : 2006 (1) KLJ 349 : 2006 (1) KLD 87 : 2006 CriLJ 1922 prosecution against petitioner is liable to be quashed.

(2.) Since petitioner was not available for trial when accused 1 and 2 were tried the case against him was split up and refiled as CC No. 402 of 2007. I have heard learned counsel for petitioner and the learned Public Prosecutor and gone through Annexure - A1, judgment. It is seen from paragraph 12 of the judgment that learned Magistrate considered evidence of the de facto complainant and his witnesses examined as PWs 1 to 4 and found that their version did not tally with the allegations in the complaint (learned counsel submits that de facto complainant preferred a complaint to the police and based on that complaint of police registered the case). It is stated in paragraph 12 of the judgment that presence of PW 4 at the time of the alleged incident cannot be believed since there is no mention in the complaint about his presence. The Court also found that evidence of PWs 1 to 3 do not tally as regards alleged time of payment and that their version that they paid the amount without any document to evidence payment cannot be accepted. The further fact which the learned Magistrate has taken into consideration is that though the passports were allegedly given to the petitioner and other accused, no attempt was made to recover the same. In short, learned Magistrate was not inclined to believe prosecution case regarding the alleged inducement, payment of money and delivery of passport. It is accordingly that accused 1 and 2 were acquitted.

(3.) In paragraph 50 of the decision referred above it is stated that where the substratum of prosecution case is shattered by the previous judgment, that could be take into account while considering request to quash proceeding. In the case on hand I stated that substratum of prosecution case is shattered. Hence I am inclined to allow the petition.