Kerala High Court
Ismail C.A vs Sakkeer Hussain on 12 April, 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
Crl.MC.No. 4098 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN CRMP 3433/2013 THE CHIEF JUDICIAL
MAGISTRATE COURT,THODUPUZHA
CRIME NO. 1541/2013 OF THODUPUZHA POLICE STATION, IDUKKI
PETITIONER(S)/PETITIONER:
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ISMAIL C.A, AGED 41
S/O.ABOOBACKER,CHIRAYILAN HOUSE, KANDATHARA, ALLAPPRA P O,
PERUMABVOOR, ERNAKULAM DIST
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT(S)/RESPONDENTS:
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1. SAKKEER HUSSAIN, AGED 41
S/O.KAREEM, THAIPARAMBIL VEEDU, THODUPUZHA, IDUKKI-685584
2. STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-
682031
R1 BY ADV. SRI.P.K.VARGHESE
R1 BY ADV. SRI.E.C.BINEESH
R2 BY ADV.RAMESHCHAND,PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
2.12.2016, THE COURT ON 12.4.2017 PASSED THE FOLLOWING:
Crl.MC.No. 4098 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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A:-TRUE COPY OF THE PRIVATE COMPLAINT DTD 20/7/2013
PREFERRED BY THE IST RESPONDENT BEFORE THE COURT OF CHIEF JUDICIAL
MAGISTRATE THODUPUZHA AS CRMP NO 3433/2013
B:-THE PHOTO COPY OF THE BANK STATMENT OF A/C.NO
10412020855 MAINTAINED BY THE WIFE OF THE DEFACTO COMPLAINT
C:-TRUE COPY OF THE RECEIPT DTD 30/5/2012 ISSUED BY THE
DEFACTO COMPLAINT
D:-TRUE COPY OF THE AGREEMENT DTD 7/6/2012 EXECUTED
BETWEEN THE PETITIONER AND THE DEFACTO COMPLAINANT
E:-TRUE COPY OF THE PETITION DTD 19/7/2012 FILED BEFORE
THE DY S P OF THODUPUZHA POLICE STATION
F:-TRUE COPY OF THE ORDER DTD 21/5/2013 OF THE SUB
COURT, PERUMBAVOOR IN IA NO 904/2013 IN OS NO 97/2013
G:-TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE OF
PROPERTY IN SY NO 199/1 OF THODUPUZHA VILLAGE DTD 28/5/2013
H:-TRUE COPY OF THE FIR IN CRIME NO 1541/2013 OF
THODUPUZHA POLICE STATION OF IDUKKI DIST
I:-TRUE COPY OF THE RECEIPT DTD 24/7/2013 ISSUED BY THE
SUB INSPECTOR OF POLICE THODUPUCHA
J:-TRUE COPY OF THE TELEPHONS BILLS OF THE PETITIONER
FOR A PERIOD OF 5/1/2011 TO 4/2/2011
RESPONDENT(S)' EXHIBITS
-----------------------
nil
TRUE COPY
SKS P.A TO JUDGE
"CR"
A.M.BABU, J.
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Crl.M.C.No. 4098 OF 2013
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Dated 12th April, 2017
ORDER
An FIR was registered against the petitioner. He seeks to quash it and all proceedings pursuant thereto. The relief is sought under Sec.482 of the Code of Criminal Procedure (Cr.P.C for short).
2. Parties are referred to in this order as they are shown in the memorandum of the criminal miscellaneous case.
3. The first respondent filed a complaint against the petitioner under Sec.190 of Cr.P.C. A copy of it is annex-A. The complaint was forwarded under Sec.156 (3) of Cr.P.C directing an investigation. Thereupon annex-H FIR was registered at the police station. The same is impugned in this proceedings.
4. The dispute is between the petitioner and the first respondent. They have their own version about the dispute. 2 Crl.M.C.No. 4098 OF 2013 The version of the petitioner is limned in the memorandum of Crl.M.C. The first respondent has depicted his version in annex-A complaint.
5. The petitioner's version is stated below: Himself and the first respondent are known to each other for several years. The latter and his wife are builders who do real estate business too. They invited the petitioner for a joint venture. He accepted the offer and gave them Rs.41,90,050/- . The petitioner was made to believe that his money would be returned with share of profits. But the money was not returned. Mediators intervened. A settlement was arrived at. An agreement was executed on 7.6.2012. The first respondent undertook to return the amount of Rs.41,90,050/- within three months. But he did not. He took hasty steps to sell his property. Hence the petitioner filed a suit, O.S.No.97/2013. The first respondent sold his property despite the order of attachment passed by the Sub-Court in O.S.No. 97/2013.
6. The version of the first respondent goes as follows: The petitioner is doing money lending business 3 Crl.M.C.No. 4098 OF 2013 without a licence. The first respondent was short of money to buy an apartment. He was contacted by the petitioner through one Jamal and offered to help. The petitioner came to the house of the first respondent on 24.3.2012 and paid him a loan of Rs.10 lakhs. From the latter and his wife the former collected altogether ten signed blank cheques, a few signed blank papers and the certified copy of the title deed of the property of the first respondent. The petitioner promised to return the signed blank cheques, signed blank papers and the document when the amount of Rs.10 lakhs was repaid with interest. The first respondent repaid Rs.8 lakhs towards the principal and Rs.6 lakhs towards interest. He raised the balance and met the petitioner. The petitioner demanded Rs.6 lakhs more towards interest. He forged an agreement and filed a suit against the first respondent and his wife.
7. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
8. One of the offences alleged against the petitioner is one punishable under Sec.17 of the Kerala Money 4 Crl.M.C.No. 4098 OF 2013 Lenders Act, 1958 (for short the Act). The other offences alleged against him are those punishable under Secs 384, 420,448, 468 and 469 of the Indian Penal Code (IPC for short). The petitioner has a threefold contention. One, the allegations against him in annex-A complaint do not constitute any offence. Two, the dispute between the parties is civil in nature. And three, the petitioner's version of the dispute alone could be true and the allegations against him are per se false.
9. One allegation against the petitioner is that he is doing money lending business without a licence. A person whose main or subsidiary occupation is the business of advancing and realising loans or accepting of deposits in the course of such business is a 'money lender' as defined in Sec.2(7) of the Act. Sec.3 of the Act prohibits doing of money lending business without a licence. Carrying on the business of money lending without a licence is punishable under Sec.17 of the Act.
10. The learned counsel for the petitioner submits that a single instance of lending a loan does not amount to doing 5 Crl.M.C.No. 4098 OF 2013 of money lending business within the meaning of the Act. The proposition is correct. One or two instances of advancing a loan would not amount to doing of money lending business. This court has said so in Vimal vs State of Kerala and Kurian vs. Leelamma Sebastian (2015 KHC 2395 and 5272 respectively).
11. But the allegation against the petitioner in annex- A complaint is not just that he lent money only once or twice. The complaint alleges at paragraph 2 that the petitioner is a member of a racket which is engaged in money lending at exorbitant rates of interest against public policy. It is alleged that he thereby swindles money. It is also alleged that he has no licence to do money lending business. There are sufficient allegations in annex-A complaint against the petitioner. Rest are matters to be ascertained in investigation.
12. In Vimal's case and Kurian's case (supra) the respective final reports were quashed as no material could be gathered on investigation to support the charging of any offence under the Act. The situation is different in the 6 Crl.M.C.No. 4098 OF 2013 present case. Here, the investigation has only started. No conclusion is possible before conclusion of investigation. Therefore the reported decisions are not helpful to the petitioner to get the prosecution against him quashed.
13. The house of the petitioner was searched. Certain documents were seized. Annex-I is the report of seizure. The result of search was not much helpful to the first respondent. But the investigation does not come to an end with annex-I report. The said report cannot be taken as evidence for groundless prosecution. The investigation may have to go on further. It cannot be stalled.
14. The contention of the petitioner at paragraph 3 of his memorandum should not go unnoticed. He has, no doubt, contended that he has joined for a joint venture with the first respondent and wife. The further contention is that the petitioner gave Rs.41,90,050/- as he was made to believe that the amount would be paid back to him with share of profits. This contention produces suspicion. For, the said contention is more close to a money lending transaction than a joint venture or partnership where not 7 Crl.M.C.No. 4098 OF 2013 only profit but loss too is shared. The matter is liable to be investigated into.
15. Forgery is another offence alleged against the petitioner. Annex-D is a copy of an agreement allegedly executed by and between the petitioner and the first respondent on 7.6.2012. It recites that the first respondent has agreed to return Rs.41,90,050/- to the petitioner within three months. Annex-D is the agreement allegedly forged by the petitioner. The complaint states at paragraph 4 that the petitioner forged an agreement as if it were executed on 7.6.2012 to the effect that Rs.41,90,050/- was due to him from the first respondent. It is also alleged that the said document was used to file a suit and to obtain an order directing attachment of the property of the first respondent before judgment. The signature in annex-D agreement is denied by the first respondent (vide paragraph 5 of annex- A). There are sufficient allegations in the complaint to take a case of forgery for investigation. If the allegations are true, at least the offence under Sec.465 of IPC is attracted. I therefore do not go into the question whether the 8 Crl.M.C.No. 4098 OF 2013 allegations in the complaint are sufficient to attract Secs 467, 468 and 469 of IPC. Let the investigation give a clear picture.
16. The first respondent has pleaded in his complaint that he was given a loan of Rs.10 lakhs. He has also pleaded that signed blank cheques, signed blank papers and the certified copy of the title deed of his property were taken from him by the petitioner. Another plea is that the aforesaid cheques, papers and document were agreed to be returned on repayment of the loan with interest. The first respondent contends that he paid Rs.8 lakhs towards the principal, Rs.6 lakhs towards interest and tendered the balance, but the petitioner demanding Rs.6 lakhs more towards interest refused to return the blank cheques, blank papers and the document. It is also pleaded in the complaint that the petitioner committed forgery to create an agreement making the former liable for Rs.41,90,050/-. Thus, there are allegations in the complaint to bring home a case of cheating coupled with forgery which deserves to be investigated.
9 Crl.M.C.No. 4098 OF 2013
17. Extortion and house-trespass are also alleged in the complaint. Allegation to support extortion is practically nil. Allegation touching house-trespass is feeble inasmuch as the time and date of the alleged incident are not stated. But the proceedings cannot be quashed as sufficient allegations are made in the complaint to make out the other offences alleged.
18. Another contention of the petitioner is that the dispute between him and the first respondent is civil in nature. Certain amount of civil disputes may be involved in criminal cases. A good example for it is Sec.420 IPC. Involvement of a civil dispute by itself is not a ground to quash a criminal prosecution. The High Court will not invoke its jurisdiction under Sec.482 of Cr.P.C to quash a criminal proceedings unless the dispute between the parties is in the nature of civil, civil and purely civil.
19. The learned counsel for the petitioner cited three decisions. Two of those decisions are (i) All Cargo Movers (India) Private Limited vs. Dhanesh Badarmal Jain ((2007) 14 SCC 776) and (ii) Sanjeev Kumar vs. 10 Crl.M.C.No. 4098 OF 2013 Puthanpurayil Abdul Salam (2014 KHC 431). In those cases the disputes were purely civil in nature. What is held in All Cargo Movers is that a breach of contract simpliciter does not constitute an offence. Sanjeev Kumar was also a case where the allegation was a breach of an agreement for sale of a property. The case on hand is entirely different. As already seen, annex-A complaint contains allegations constituting different offences. The reported decisions referred to above are therefore of no help to the petitioner.
20. The third decision relied on by the learned counsel on the same point is that of the Uttarakhand High Court. The decision is Rahul Sahgal vs. State of Uttarakhand (2013 KHC 3505). One of the reasons why a criminal prosecution was quashed was that the pendency of two civil suits between the parties would indicate that the controversy was of a civil nature. I respectfully disagree with the learned Single Judge of the Uttarakhand High Court. Mere pendency of civil suits cannot go to a conclusion that the dispute is only civil in nature. The present one is a case 11 Crl.M.C.No. 4098 OF 2013 where the dispute is not purely civil, although a civil dispute may also be involved.
21. Lastly, the last contention of the petitioner. According to him, his version of the dispute alone could be true and the allegations against him are per se false. The petitioner has produced certain documents with a view to establish his contentions true and the contentions against him false. His case is that Rs.41,90,050/- taken from him was not repaid despite the execution of an agreement undertaking to repay it. I am constrained to go into the documents produced by the petitioner as I am called upon to do so. It was argued that those documents would clearly establish that money was due to the petitioner and not due from him. Let me therefore consider the documents produced by the petitioner.
22. The petitioner alleges in the memorandum of Crl.M.C that he gave Rs.41,90,050/- to the first respondent. That is a huge amount. The memorandum is silent as to when was the payment made and how was it made. The petitioner seems to rely too much on annex-B document. 12 Crl.M.C.No. 4098 OF 2013 His memorandum does not state for what purpose he produced it. All that is stated in the memorandum about annex-B is that it is the bank-statement pertaining to the account of the wife of the first respondent. However, the disputed annex-D agreement recites that on 24.3.2012 Rs.9,90,050/- was transferred to the account of the first respondent's wife, Ayisha by name. In annex-E petition submitted to the Dy.S.P also the petitioner stated that Rs.9,90,050/- was transferred to the account of the wife of the first respondent. The learned counsel for the petitioner argued that annex-B would show the transfer of Rs.9,90,050/- to the account of the wife of the first respondent. There could be some substance in the contention of the petitioner if Rs.9,90,050/- was credited to the account of the wife of the first respondent. A transaction involving Rs.9,90,050/- is shown in annex-B against the date 24.3.2012. But the amount is not seen credited to annex-B account. It is shown debited from that account. The entry concerned could be a withdrawal of Rs.9,90,050/- from the account or a transfer from the account. It is certainly not a 13 Crl.M.C.No. 4098 OF 2013 transfer to the account. Annex-B does not support the case of the petitioner if it pertains to the account of the wife of the first respondent.
23. The name of the account holder shown in annex-B is not Ayisha, but M/s Silver Star Steels. It is the account of the petitioner himself. His name is shown in annex-B beneath the name and address of the account holder M/s Silver Star Steels. It is not known why the petitioner produced the statement of accounts of his own account as if it were the statement pertaining to the account of the wife of the first respondent.
24. The mode of transfer as stated in annex-D disputed agreement is RTGS (Real Time Gross Settlement) . The mode of transfer is not discernible from annex-B. The number of a cheque is shown therein against the date 24.3.2012. No other detail is legible as the crucial portion in annex-B is seen blackened. All other entries therein are legible. The crucial portion where the details of the debit entry on 24.3.2012 are entered is seen blackened. That must be purposefully done. The petitioner had something to 14 Crl.M.C.No. 4098 OF 2013 hide and therefore the crucial portion was blackened. Annex- B in its present shape does not help the petitioner to establish that the amount shown therein was transferred from his account to the account of the wife of the first respondent through RTGS or any other mode of bank to bank transfer.
25. Annex-C is a copy of a 'receipt' allegedly issued to the petitioner by the first respondent on 30.5.2012. The so called receipt recites that Rs.32 lakhs is due to the former from the latter excluding the profit. Annex-C is not an admitted document. As already said, annex-D agreement is allegedly a forgery. Disputed documents cannot be pressed into service to get a criminal prosecution quashed.
26. Annex-E is a copy of the petition submitted to the Dy.S.P, Thodupuzha by the petitioner . The grievance voiced therein is that the first respondent did not return the money to the petitioner. The latter cannot expect to get the criminal proceedings against him quashed on the strength of his own petition submitted to a police officer. It should not go unnoticed that going by annex-E petition, the amount 15 Crl.M.C.No. 4098 OF 2013 allegedly given to the first respondent and his wife by the petitioner was not Rs.41,90,050/-, but Rs.60,60,260/-. It is alleged in annex-E that the said amount was paid in cash. Annex-E recites further that in addition to the amount referred to above, Rs.32 lakhs was swindled from the petitioner by the first respondent from 30.5.2012 onwards. The claim does not stop there. Another figure of Rs.16,25,000/- is also shown to be due from the first respondent and his wife to the petitioner. In view of his own annex-E petition, the petitioner cannot prevent an investigation into the allegation against him that he committed an offence under Sec.17 of the Act. It is not known why the petitioner who considers the dispute between him and the first respondent purely civil in nature went to a police officer with annex-E petition.
27. Annex-F shows that the property of the first respondent was attached before judgment in OS 97/2013. Annex- G is the certificate of encumbrance in respect of the property attached. These documents are totally irrelevant in deciding the question that is being discussed. Annex-J is the 16 Crl.M.C.No. 4098 OF 2013 call details of the telephone connection subscribed by the petitioner. The same is produced to destruct the case of the first respondent that he had no acquaintance with the petitioner before 24.3.2012. The call details may show something in favour of the petitioner. But that much is not sufficient to enter a finding that all allegations against him are false.
28. The documents annexed to the memorandum of Crl.M.C are quite insufficient to hold that the allegations against the petitioner are inherently false. He produced the judgment in OS 97/2013. His learned counsel submitted that the criminal prosecution should be quashed since the civil court granted a decree. The learned counsel submitted that the civil court accepted the contentions of the petitioner, accepted the documents produced by him as genuine and rejected the contentions of the first respondent. It was also submitted that no appeal was filed against the decree. Do the decree and judgment of a civil court have any impact on a criminal prosecution when the parties and issues are same? That is the question.
17 Crl.M.C.No. 4098 OF 2013
29. A judgment in one proceedings is relevant in another proceedings only if Sec.40, 41, 42 or 43 of the Indian Evidence Act is attracted. Sec.40 provides that the existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognizance of such suit, or to hold such trial. Sec.40 has no application here, where the question is not relating to the taking of cognizance of any suit or holding of any trial. Sec.40 can have application only if the judgment, order or decree prevents any court under any law from taking cognizance of a suit or holding a trial. Therefore the judgment, order et cetera must be one which prevents holding of a trial under Sec.300 of Cr.P.C or under Sec.11 of CPC. The judgment relied on by the petitioner is not such a judgment and therefore not relevant under Sec.40 of the Indian Evidence Act.
30. A final judgment, order or decree of a competent court is relevant under Sec.41 of the Evidence Act only if it is 18 Crl.M.C.No. 4098 OF 2013 passed in the exercise of probate, matrimonial admirality or insolvency jurisdiction. The judgment produced by the petitioner is not one passed in the exercise of any such jurisdiction. Therefore it is not necessary to go into the other ingredients of Sec.41. The judgment in O.S.97/2013 is not relevant under Sec.41.
31. Sec.42, Indian Evidence Act, deals with the relevancy of judgments, orders or decree other than those mentioned in Sec.41. A judgment, order or decree which does not come within the purview of Sec.41 comes within the purview of Sec.42 only if it relates to matters of public nature relevant to the enquiry. The judgment received by the petitioner is not such a judgment and therefore not relevant under Sec.42 of the Evidence Act.
32. Sec.43 of the Evidence Act declares that judgments, orders or decrees other than those mentioned in Secs 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Evidence Act. The existence of the judgment obtained by the petitioner is 19 Crl.M.C.No. 4098 OF 2013 neither a fact in issue in the present case nor relevant under any other provisions of the Evidence Act. It is therefore quite irrelevant.
33. The learned counsel for the petitioner relied on two decisions. The decisions are (i) Premshanker vs. I.G of Police (AIR 2002 SC 3372) and (ii) George K.P vs. State of Kerala (2013 KHC 2506).
34. In Premshanker's case (supra) a three-judge bench of the Supreme Court considered two decisions of the Supreme Court. One of those decisions was that of a two- judge bench in V.M. Shah vs. State of Maharashtra ((1995) 5 SCC 767). The other decision was rendered by a three-judge bench in M/s Karam Chand Ganga Prasad vs. Union of India ((1970) 3 SCC 694). It was held in V.M.Shah's case that the findings recorded by the criminal court would stand superseded by the findings recorded by the civil court. It was also held that the findings of the civil court would get precedence over the findings of the criminal court. The judgment in M/s Karam Chand's case (supra) 20 Crl.M.C.No. 4098 OF 2013 observed that it was a well established principle of law that the decisions of the civil courts were binding on the criminal courts, but the converse was not true. The Supreme Court holds in Premshanker (supra) that the general observation in M/s Karam Chand (supra) must be read in the context of the facts and circumstances of that case and that the observation in V.M.Shah (supra) is not the correct enunciation of law. The apex court in Premshanker (supra) considered Secs 40 to 43 of the Evidence Act at length and declared the law on the point. It was held that if the civil case and the criminal proceedings were for the same cause, the judgment of the civil court would be relevant if the conditions of any of Secs 40 to 43 of the Evidence Act were satisfied. It is already seen that Secs 40 to 43 have no application in the present case. Premshanker (supra) is of no help to the petitioner.
35. George K.P vs. State of Kerala (2013 KHC 2506) relied on by the petitioner is strictly not a decision on Sec.43 or on any other provision of the Evidence Act. The dictum laid down is not that a civil judgment is always 21 Crl.M.C.No. 4098 OF 2013 relevant in a criminal proceedings. That was a case where the accused as the plaintiff had filed a civil suit and obtained a decree on the disputed promissory note. It was only thereafter a complaint was filed alleging the promissory note to be a forgery. It was also noticed that the charge-sheet was filed without even seizing the document allegedly forged. In these circumstances only this court said as under:
Though a judgment rendered by a civil court as such is not binding or conclusive, a proceeding having some nexus with the disputes adjudicated in such judgment is projected before the criminal court, having regard to totality of the facts and circumstances involved in the case it can be looked into. Irrespective of the question whether the judgment of the civil court has any relevancy or not, where exercise of inherent powers of this court is called for to impeach a criminal proceeding as an abuse of the process of the court, it can definitely be taken note of. In Premshanker v. IG of Police, 2002 (3) KLT 389 (SC), three judges Bench of the Apex Court has considered to what extent and under what circumstance judgment rendered by a civil court can be looked into where criminal case and civil proceedings arise from the same cause. It has got a limited value when such a judgment falls only within the ambit of S.43 of the Evidence Act. But, relevancy of judgment under the aforesaid Section and limited scope thereof, would not interdict this court where the judgment rendered itself is shown to be founded over a document, 22 Crl.M.C.No. 4098 OF 2013 which is challenged as forged to set the criminal law in motion.
It is clear from the judgment in George K.P's case that this court was satisfied that the criminal complaint was false. Facts and situation are entirely different in the present case. Here, the complaint was filed not after the decree in OS 97/2013. There is ample time to seize the document allegedly forged and to get it scrutinized by a handwriting expert. It is already seen that the allegations against the petitioner are liable to be investigated into.
36. The judgment produced by the petitioner is no way helpful to him to get the criminal prosecution against him quashed and thereby to get the investigation into the offences alleged against him prevented. There are sufficient allegations in annex-A complaint to go for investigation. Let the investigation go on. The Crl. M.C is without any merit. It deserves only a dismissal.
37. Dismissed.
sks/3.4.2017 A.M.BABU
Judge