Kerala High Court
Suresh Bharath vs State Of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936
Crl.MC.No. 1747 of 2012 ()
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CRIME NO. 845/2011 OF EAST KALLADA POLICE STATION , KOLLAM
PETITIONER(S):
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1. SURESH BHARATH, AGED 58 YEARS,
MANAGING DIRECTOR,
M/S NAVRATAN PIPES & PROFILE LTD, 10,
COMMUNITY CENTRE, 3RD RLOOR,
MAYAPURI INDUSTRIAL AREA- PPHASE I NEW DELHI 110 064.
2. NITHUN BHARATH,
DIRECTOR, M/S NAVRATAN PIPES & PROFILE LTD,
10, COMMUNITY CENTER, 3RD FLOOR,
MAYAPURI INDUSTRIAL AREA-PHASE I, NEW DELHI - 110 064.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM (CRIME NO 845/2011 OF EAST KALLADA
POLICE STATION KOLLAM DISTRICT) 682031
*ADDL.R2 IMPLEADED:
ADDL.R2: BINU, S/O.SUDHAKARAN, AGED 39 YERS,
SREEVIHAR, PEZHUMTHURUTHU, PERUMON,
PROPRIETOR BINU & COMPANY), KOLLAM, PIN-691 001.
ADDL.R2 IS IMPLEADED AS PER ORDER DATED 7.6.2012 IN CRL.M.A. 3864/12
IN CRL.M.C.1747/12.
R1 BY PUBLIC PROSECUTOR SRI.JITHESH R.
RADDL.2 BY ADV. SRI.V.V.RAJA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-04-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1747 of 2012 ()
APPENDIX
PETITIONER(S) EXHIBITS
ANX.I COPY OF THE AGREEMENT DATED 20-7-2010 ENTERED INTO
BETWEEN THE PETITIONERS AND BINU & COMPANY.
ANX.II COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 845/2011.
ANX.III COPY OF THE LETTER SENT TO BINU SUDHAKARAN FROM THE FIRST
ACCUSED COMPANY DATED 5-11-2011.
ANX.IV COPY OF THE COMPLAINT SENT BY 1ST ACCUSED COMPANY TO C.I.
OF POLICE, KOLLAM AGAINST THE DEFACTO COMPLAIANANT DATED
21-3-2012.
ANX.IV(a) COPY OF THE COMPLAINT SENT BY 1ST ACCUSED COMPANY TO S.I.
OF POLICE, KOLLAM AGAINST THE DEFACTO COMPLAIANANT DATED
21-3-2012.
ANX.IV(b) COPY OF THE COMPLAINT SENT BY 1ST ACCUSED COMPANY TO
DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM DATED 21-3-2012.
ANX.IV(c) COPY OF THE COMPLAINT SENT BY 1ST ACCUSED COMPANY TO
COMMISSIONER OF POLICE, KOLLAM AGAINST THE DEFACTO
COMPLAINANT DATED 21-3-2012.
ANX.V COPY OF DETAILED REPRESENTATION SUBMITTED BY THE 1ST
ACCUSED COMPANY TO THE STATION HOUSE OFFICER, EAST
KALLADA POLICE STATION DATED 12-12-2011.
RESPONDENTS' EXHIBITS NIL
/TRUE COPY/
P.A.TO JUDGE
VPV
P.D.RAJAN, J
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Crl.M.C.No.1747 of 2012
.........................................
Dated 8th April, 2014
ORDER
This petition is filed under Section 482 Cr.PC to quash Annexure II FIR in Crime No.845 of 2011 of East Kallada Police Station for offences punishable under Section 420 read with 34 IPC. Petitioners 2 and 3 are Directors of a company engaged in manufacturing and marketing steel pipes, tubes, roofing materials etc. Second respondent, who is the defacto complainant, is the consignment agent of the company to sell the products in Kerala. Petitioners and 2nd respondent entered into Annexure I agreement and thereafter engaged in business. While so, some dispute arose between the petitioners and second respondent with regard to the business. Subsequently, second respondent realised that petitioners cheated him. Hence he filed Annexure II (6 to 9) complaint before Judicial First Class Magistrate-I, Kollam from where it was forwarded to East Kallada Police Station for investigation under Section 156 Crmc 1747/2012 2 (3) Cr.P.C. Petitioners contended that the relationship between the second respondent and the petitioners was that of principal and agent and no criminal offence will be attracted in the transaction and if investigation is proceeded, it will amount to an abuse of process of court and prima facie case is not made out in Annexure IV complaint. Hence it is prayed that the inherent jurisdiction may be invoked.
2. The allegation of the second respondent was that on 2.7.2010, the second respondent contacted the petitioners for purchase of various products and at that time, both parties discussed the terms and conditions. Subsequently, petitioners appointed second respondent as their agent for State of Kerala and they executed Annexure I agreement for the period from 20.7.2010 to 19.7.2011 and both parties signed the agreement during the month of July, 2010. As per the agreement, petitioner's products were supplied as per the intents and in the agreement, petitioners undertook to send the freight charges. Later, in violation of the agreement, Crmc 1747/2012 3 petitioners fraudulently and dishonestly retained the amount and the amount due to the second respondent was not paid in time and thereby intentionally cheated the second respondent. In the circumstance, he filed Annexure II before court which was forwarded to East Kallada Police Station where investigation is being stayed by this court since 8.5.2012. Hence this petition.
3. Learned counsel appearing for the petitioner contended that the transaction between the petitioners and the second respondent is purely civil one and no criminal case is made out. Since the principal and agent relationship is being maintained from July 2010 onwards to July 2011, no criminal prosecution is possible against the petitioners, which is violation of Annexure I agreement. Learned counsel relied on the decisions reported in Medchi Chemicals and Pharma (P) Ltd V. Biological E.Ltd (2000 KHC 538),Thermax Limited and others V. K.M.Johny and others ( 2011(13) SCC 412) and Rajeswar Tiwari and others V. Nanda Kishore Roy (2010(8)SCC 442).
Crmc 1747/2012 4
4. Learned counsel relied on the decisions reported in Mohammed Ibrahim and others V. State of Bihar and another (2009(8) SCC 751), Dalip Kaur and others V. Jagnar Singh and another (AIR 2009 SC 3191), Anil Mahajan V. Bhor Industries Ltd and another (2005(10) SCC 228 and G.Sagar Suri and another V. State of U.P and others (2000(2) SCC 636).
5. Learned counsel for the first respondent strongly resisted the contention and submitted that prima facie case attracting Section 420 IPC was made out in the complaint and the investigation is progressing. Even though several transactions are alleged in the incident, there are occasions to prove the ingredients of the criminal cases such as cheating and breach of trust. In such circumstances, it is not fair to quash the complaint. Learned counsel relied on the decision reported in H.H.Mirza and others V. State of Gujarat and another ( 2013 KHC 2339), Reji Michael V. Vertex Securities Ltd (1999 KHC 436) and State of Punjab V. Pritam Chand and others (2009(1) KLD 600). Crmc 1747/2012 5
6. Now the question that arises for consideration is whether prima facie case is made out. In order to invoke the inherent jurisdiction under Section 482 Cr.P.C, High Court has to make such orders as may be necessary to "give effect to any order" under this code or to prevent "abuse of the process" of any court or to secure "the ends of justice". In Madhu Limaye V. The State of Maharashtra (1977(4) SCC 551) it was held as follows:-
The following principles in relation to the exercise of the inherent power of the High Court have been followed ordinarily and generally, almost invariably, barring a few exceptions:
i) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code".
Crmc 1747/2012 6
The parameters for exercising the inherent jurisdiction under Section 482 Cr.P.C has been explained by Apex Court in State of Haryana V. Bhajanlal (1992 SCC Crl
426) which reads as follows.
"where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed".
7. I have considered all the documents produced by the petitioners. The fact relating to what terms were violated, in which way the deception was committed and who planned the fraud are matters of evidence, which are to be considered by the Investigating Officer. If any interference is made at this stage by this court, it will amount to an injustice to the second respondent. I have taken note of all the decisions relied on by the learned counsel for the petitioners as well as second respondent. I am of the view that those decisions will not help to quash the proceedings in the present case. Applying the Crmc 1747/2012 7 principles of Bhajanlal's case (supra), I am of the opinion that there is no merit in this petition and it is accordingly dismissed.
P.D.RAJAN, JUDGE lgk