Krishna Prasad vs State of Kerala

A. Hariprasad, J.—Petition filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioner is the 2nd accused in Crime No. 440 of 2007 of Alappuzha North Police Station registered under Sections 406, 420 and 409 read with Section 34 of the Indian Penal Code (in short, "IPC").

Prosecution case, in short, is as follows: 1st accused in the crime is a mahila pradhan agent canvassing recurring deposits in a Post Office. 2nd accused was the Postmaster in charge of Thathampilly Post Office. The de facto complainant subscribed to a recurring deposit in the said Post Office. She had gone for a premature closure of the account. On 29.06.2007, the 1st accused obtained signature of the de facto complainant in a withdrawal slip for a sum of Rs. 1,84,704/- accrued in the recurring deposit. The amount was transferred to the savings bank account in the post office maintained in the name of the de facto complainant. 1st accused obtained another slip signed by the de facto complainant for withdrawing the amount from the savings bank account. Originally it was the case that the 1st accused, after withdrawing money from the de facto complainant''s account, misappropriated it and committed breach of trust and cheating. The investigation done revealed the complicity of the petitioner/2nd accused.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Petitioner approached the learned Chief Judicial Magistrate, Alappuzha with C.M.P.No.5281 of 2010 in C.C.No.694 of 2007 claiming discharge under Section 239 Cr.P.C. After considering the matter, learned Magistrate discharged the petitioner finding that there was no material to prima facie think that the petitioner had done any misappropriation or breach of trust or cheating as alleged. The State took up the matter in criminal revision before the learned Sessions Judge, Alappuzha. Learned Sessions Judge set aside the order of the learned Magistrate and the matter was remitted to Magistrate for proceeding further. Aggrieved by the said order, petitioner/2nd accused has preferred this miscellaneous case.

Learned counsel for the petitioner submitted that at no point of time till 20.11.2008, the de facto complainant uttered a single word against the petitioner. Learned counsel drew attention of this Court to various statements of the de facto complainant recorded by the Police under Section 161 Cr.P.C., wherein all the accusations were levelled against the 1st accused. Annexure-A1(a) is the statement given by the de facto complainant by her own and Annexure-A1(b) is the statement recorded by the Police. In both these statements, the de facto complainant had stated that the 1st accused received Rs. 1,84,704/- from the Post Office and appropriated the said amount for her personal use. It is the version of the de facto complainant that the 1st accused confessed that she used the money due to pressing necessity and it would be returned soon. It is also seen that the parties have entered into an agreement on 21.08.2007, whereby the 1st accused paid Rs. 1,25,000/- to the de facto complainant as full and final settlement of the amounts.

Learned Prosecutor submitted that the involvement of the petitioner in the crime was later revealed from the statement of the 1st accused. Thereafter, the CBCID started investigation into the matter. Case against the petitioner is that he was also a colluding party with the 1st accused to aid the latter to draw money from the savings bank account maintained by the de facto complainant. It is alleged by the learned Prosecutor that the money could not have been withdrawn by the 1st accused from the account of the de facto complainant without the active connivance of the 2nd accused.

I have carefully perused the case diary submitted by the learned Prosecutor, which was one reconstructed because the original case diary was lost. I do not find any material in the case diary to find that the petitioner/2nd accused allowed the 1st accused to sign on the records on behalf of the de facto complainant. The materials produced by the petitioner would show that the accusation levelled by the de facto complainant is against the 1st accused only. The involvement of the petitioner/2nd accused comes up before the investigating agency for the first time after nearly 1 = years. It is the definite version of the de facto complainant that when she made enquiries in the Post Office, it was revealed that the amount was received by the 1st accused as authorised by the de facto complainant. Therefore, in the absence of any material to find that the 2nd accused was also involved in the misappropriation and cheating, the learned Magistrate was perfectly justified in finding that it is a fit case to discharge the accused under Section 239 Cr.P.C.

Learned counsel for the petitioner contended that the question of sanction under Section 197 Cr.P.C. was also considered by the learned Magistrate. Annexure-A8 is the letter issued by the Dy.S.P., Alappuzha seeking permission to prosecute the petitioner/2nd accused. Annexure-A9 is the reply sent by the Office of the Postmaster General, Central Region, Kochi declining the sanction for prosecution. It is mentioned in Annexure- A9 that they conducted a departmental enquiry into the matter and it was revealed that the 2nd accused was not responsible for the alleged defalcation of the amount.

Learned counsel for the petitioner relying on Matajog Dobey Vs. H.C. Bhari, contended that the object of Section 197 Cr.P.C. is to protect the public servants from harassment in the discharge of their official duties. Petitioner, according to the learned counsel, has only discharged his duty of crediting money to the account of the de facto complainant after getting proper vouchers and receipts. He has no connection with the withdrawal of the amount and it was done by the 1st accused. What he has done is only discharging his duty attached to his office.

Learned Prosecutor would submit that no sanction under Section 197 Cr.P.C. is required to prosecute the petitioner/2nd accused. In answer to this argument, learned counsel for the petitioner submitted that having sought sanction and having got it refused, the prosecution cannot turn round to say that no sanction was required. Whatever that be, there is no material to implicate the petitioner in the case even going by the allegations raised by the de facto complainant. Considering all the materials before me, I find no reason to see that the petitioner was also a participator in the alleged offences. Therefore, in this matter the decision of the learned Magistrate is the legally correct one. So much so, the order passed by the learned Sessions Judge is liable to be set aside.

In the result, the petition is allowed. The order in Crl.R.P. No. 9 of 2011 passed by the learned Sessions Judge, Alappuzha is set aside and the order passed by the learned Chief Judicial Magistrate, Alappuzha on C.M.P.No.5291 of 2010 in C.C.No.694 of 2007 is restored.

All pending interlocutory applications will stand dismissed.