MUNU ADHI Vs. VETTIVER @ ETTISINGH

JUDGEMENT

(1.) ACCUSED No. 3 in C.C. No. 2506/90 on the file of Judicial Magistrate, Tambaram, has filed this petition under Section482 Cr.P.C. praying to call for the records in the above case and quash the same.

(2.) SHORT acts are: The respondent has filed the private complaint against four persons, arraying them as accused 1 to 4, out of whom the petitioner is the third accused for offenses under Section 403, 420 and 423 read with 34 I.P.C. The allegations in it are briefly as follows:

(3.) I have carefully considered the submissions made by rival counsel. To consider the sub -missions certain facts need be stated. The respondent had earlier filed private compliant against the present accused 1 and 2 alone in the court of Judicial Magistrate, Tambaram, for offences under Section 420 and 406 I.P.C. read with 34 I.P.C. with regard to the same occurrence. In it, it is stated that accused 1 and 2 had requested the complainant to come to their village and do the prayers (Samiyattam) and promised to give substantial amount. The complainant believed their representation and went to their village along with the properties which are given in detail in the complaint. On the date of occurrence, they made him consume large quantity of arrack and obtained his thumb impressions, in various papers and while he was in an unconscious state, left the place with the idol and the properties. When the complainant regained consciousness and questioned the accused, he refused to deliver back the idols and the properties. The idols and the properties are priceless properties. Here, the complaint. Absolutely no whisper was made against the present petitioner in that complaint. It is his positive case in the first complaint that when he regained consciousness and questioned the accused, they had positively told him that they would not deliver back the idols and those properties. That was filed on 26.7.90. That was forwarded to the police by the learned magistrate for enquiry and report by 20.8.1990. On 26.7.1990 the complainant had given a report to the Sub -Inspector of Police, Tambaram. In it, he had made allegations against accused 1 and 2 alone. It is also relevant to mention that according to the first complaint, the occurrence was fours months prior to the filing of that first complaint. So it is not as if that was given in a hurry and there was omission to make allegations against the present petitioner. Then the second complaint was given on 12.9.1990, which is the impugned complaint. In Para 4 of the second complaint, he has stated that after he retained consciousness and when the questioned about the idol and properties, he has told that they are in the house of third accused and they further told that it was the safe place. But in the first complaint, he has stated that when he regained consciousness and questioned accused 1 and 2, they told clearly and positively that they would not return those idols and properties. From the above facts it is obvious that the second complaint has been filed only in a frivolous manner against the petitioner. It is also relevant to mention that in the second complaint, there is absolutely no explanation as to why the name of the third accused/petitioner herein was not mentioned in the first complaint. Neither there is any allegation that he came to know about the part played by the third accused only after the filing of the first complaint.