Benny Mathew vs State of Kerala

Thomas P. Joseph, J.—Petitioner is the fifth accused in Crime No. 94 of 2006 of Ayarkunnam Police Station and C.C. No. 198 of 2009 of the court of learned Judicial First Class Magistrate-III, Kottayam for offences punishable under Sections 468, 471, 120B and 201 read with Section 34 of the Indian Penal Code. Prosecution case is that Petitioner and others entered into a conspiracy to make unlawful gain for themselves and loss to the defacto complainant, forged the R.C. Book and other documents as if first accused is the registered owner of the vehicle involved, made the defacto complainant believe so and obtained loan from him on the security of those documents. Petitioner seeks to quash proceeding against him on the strength of Annexure-A3, judgment.

I have heard learned Counsel for Petitioner and the learned Public Prosecutor. Learned Counsel submitted that in the light of the finding in Annexure-A3, judgment prosecution against the Petitioner cannot stand.

Accused 1 to 4 faced trial in C.C. No. 273 of 2007 and by Annexure-A3, judgment dated 22.07.2009 they were acquitted u/s 248(1) of the Code of Criminal Procedure (for short, "the Code"). The case against Petitioner was split up and refiled as C.C. No. 198 of 2009. The question is whether prosecution against Petitioner/fifth accused is to be proceeded with or not. If the substratum of the prosecution case is destroyed by Annexure-A3, judgment, then, prosecution against Petitioner need not be allowed to continue. It is seen from Annexure-A3, judgment that PW1, the defacto complainant did not support the prosecution case. It is also seen from that judgment that PW1 deposed that he had verified the records produced as security for the loan and was satisfied that the same were the original. He stated that he has no complaint about the alleged cheating. Learned Magistrate, referring to the evidence of PW1 has observed that "evidence of PW1 shows that prosecution case against the accused persons are false". PW2 examined in C.C. No. 273 of 2007 is an attestor to the seizure mahazar. Other witnesses, obviously in the light of the evidence given by the defacto complainant were given up. In the circumstances I am inclined to think that the substratum of the prosecution case is destroyed by Annexure-A3, judgment and hence the prosecution against Petitioner need not be allowed to continue.

Resultantly this Criminal Miscellaneous Case is allowed. The proceedings against Petitioner in C.C. No. 198 of 2009 of the court of learned Judicial First Class Magistrate-III, Kottayam are quashed.