Anoop Joseph, Anoop M., Fred Paul & Vani @ Kalaivani v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **Crl.MC.No.4082 of 2016** **AGAINST THE ORDER/JUDGMENT IN CC 438/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE** **CRIME NO.20/2014 OF NADAKKAVU POLICE STATION, KOZHIKODE** ## **PETITIONERS / ACCUSED 1, 3 AND 4:** - **1 ANOOP JOSEPH, AGED 33, S/O JOSPEH, THEKKEKARA HOUSE, THAMBALAMANNA P.O., CALICUT-673 603.** - **2 ANOOP.M., AGED 25, S/O MADANANA PILLAI, ARCHANA, CHATHINAMKULAM, KOLLAM-691 014.** - **3 FRED PAUL, AGED 27, S/O M.G.PAUL, MANAVALAN HOUSE, AYROOR P.O., ATTUPURAM, ERNAKULAM DISTRICT-683 579. BY ADV. SRI.ARUN BABU** ## **RESPONDENTS /STATE & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-688 031.** - **2 SUB INSPECTOR OF POLICE, NADAKAVU POLICE STATION, KOZHIKODE CITY, PIN- 673 601. (CRIME NO.20/14 OF NADAKAVU POLICE STATION)** - **3 SREERANJ S., S/O SREEDHARAN, DHANYA NIVAS, KAYANNA BAZAR P.O. KOZHIKODE, PIN- 673 606.** **BY SR. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH Crl.MC.5015/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos.4082 & 5015 of 2016 ..2.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** **Crl.MC.No.5015 of 2016** **AGAINST THE ORDER/JUDGMENT IN CC 438/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE** **CRIME NO.20/2014 OF NADAKKAVU POLICE STATION, KOZHIKODE** ## **PETITIONER/5TH ACCUSED:** **VANI @ KALAIVANI, AGED 29, D/O RAJASEKHAR, ASOK ILLAM HOUSE, CORNATION TOWN, KOLAR, KARNATAKA DISTRICT.** **BY ADVS. SRI.K.A.JALEEL SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS /STATE AND DE FACTO COMPLAINANT:** **1 STATE OF KERALA (REP. BY THE SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION,(CR.NO.20/2014 OF NADAKKAVU POLICE STATION), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SREERANJ S., S/O. SREEDHARAN, DHANYA NIVAS, KAYANNA BAZAR. PO. KOZHIKODE-673526. SRI. M. S. BREEZ SR. PUBIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH Crl.MC.4082/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos.4082 & 5015 of 2016 ..3.. ## **ORDER** These petitions are filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.1, 3, 4 & 5 in C.C.No.438 of 2016 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode. In the aforesaid case, they are being proceeded against for having committed offences punishable under Sections 406, 419 & 420 r/w. Section 34 of the Indian Penal Code. 3. Claiming to be associated with Fly Zone Aviation Pvt. Ltd., an education and consulting agency based in Delhi, the petitioners herein are alleged to have conducted an interview for recruiting ground staff for requirement at the Mumbai Airport. About 30 persons attended the interview, which was held in the office of Fly Zone Aviation situated in the first floor of a building at Kasaba, Kozhikode. Based on source information, the Sub Inspector of Police, conducted a raid. Since the petitioners were not able to produce any records evidencing that they have any association with Fly Zone Aviation Pvt. Ltd., Mumbai, Crime No. 20 of 2014 of Nadakkavu Police Station was registered under Sections 419, 406 r/w. Section 34 of the IPC. Investigation was completed and final report was laid before the jurisdictional court. Crl.MC.Nos.4082 & 5015 of 2016 **==> picture [31 x 7] intentionally omitted <==** 4. Sri.Arun Babu, the learned counsel appearing for the petitioners, submitted that the continuance of criminal proceedings against the petitioners is a sheer abuse of process. He would urge that Fly Zone Aviation Pvt. Ltd., Delhi is a Company established for conducting courses for students, who are interested in joining the aviation industry. The Directors of the Company are Sri.Nasif Seethi and Arun Shoukeen. The said Company has an office at Kozhikode, which is directly run by Nasif Seethi and the 1[st] petitioner with the consent of the other Director. He would urge that on 8.1.2014, when a raid was conducted by the Station House Officer, certain students had come to the office to enquire about the courses, which were offered by Fly Zone Aviation. Not even a single paise had changed hands and all that the witnesses state is that they were told that on successful completion of courses conducted by Fly Zone Aviation, they would be entitled to a salary ranging from Rs.12,000/- to Rs.20,000/- as ground staff in the Mumbai Airport. They were also told that if they successfully complete the next interview, they will have a chance to go high up in the ladder and for enhanced salary. While counseling was going on, the police entered the office and arrested the staff of Fly Zone Aviation. The learned counsel would further contend that Nasif Seethi, the Director of Fly Zone Aviation Pvt. Ltd. Delhi was questioned by the police and he has been cited as CW5 in the final report. The witness had clearly stated that the office at Kozhikode was run on the strength of an Crl.MC.Nos.4082 & 5015 of 2016 **==> picture [31 x 7] intentionally omitted <==** agreement, which was valid till 31.12.2013. According to the learned counsel, conducting a counseling appraising job seekers of their prospects in the Aviation industry cannot invite a prosecution under Section 420 of the IPC. 5. Learned counsel appearing for the petitioner in Crl.M.C.No.5015 of 2016 contended that she is an Air-hostess working with Air India and a close friend of the 1[st] accused. Due to her experience in the airline industry, she was invited by the 1[st] accused to participate in the counseling process. 6. Learned Public Prosecutor, on instructions, submitted that though no money had changed hands, the petitioners were engaged in inducing job seekers to part with money by assuring them jobs in the aviation industry. 7. I have considered the submissions advanced and have perused the final report. Essentially, the allegation is that the petitioners herein were conducting airline recruitment by portraying themselves as officers of Fly Zone Aviation Company Pvt. Ltd., Delhi. When a final report is sought to be quashed, it is permissible to look into the materials what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. (see **K.L.E. Society v. Siddaklingesh** [2008 (4) SCC 541]). For the limited purpose of ascertaining the nature of allegations against the petitioners, the statement of the witnesses were perused. It appears that CW5 Crl.MC.Nos.4082 & 5015 of 2016 **==> picture [31 x 7] intentionally omitted <==** is Nasif Seethi, who is one of the Directors of Fly Zone Aviation Company Pvt. Ltd. From his statement, it is luminescent that it is on the strength of an agreement entered into between the Directors of the Company and the 1[st] petitioner herein that the office was run at Kozhikode. He specifically states that the office at Kozhikode was run under his supervision, but that the agreement period had expired a few days back. In view of the said fact, the case of the prosecution that the petitioners herein were portraying themselves as employees of Fly Zone Aviation and was carrying out illegal recruitment is falsified even going by the prosecution records. 8. Furthermore, there is no case for the prosecution that the petitioners herein had received any money from any of the prospective job seekers, who were present inside the office on 8.1.2014. The witnesses have only stated that they were told by the petitioners about the job prospects in the aviation industry and nothing more. 9. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is also necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. Furthermore, the prosecution should also have a case that the persons so deceived were induced to deliver any property to any person or to consent that any person shall retain any property. In that Crl.MC.Nos.4082 & 5015 of 2016 **==> picture [31 x 7] intentionally omitted <==** view of the matter, the basic ingredients of the offence under Sections 419 and 420 of the IPC are clearly absent. 10. It is also alleged that the petitioners herein were running the educational and placement agency without procuring a D & O Licence from the Municipality. As rightly submitted by the learned counsel, running of a consultancy cannot be considered as affecting public interest or of causing nuisance as mandated under the above provision. If there is violation of the provisions of the Municipality Act, 1994, the local authority can initiate appropriate proceedings, strictly in accordance with the provisions of the said Act. 11. Now the question is, whether the prosecution proceedings are liable to be quashed. It is by now settled that the powers possessed by this Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. However, if on appreciation of the final report as a whole and if it appears that the ingredients of the offence are absent and that the continuance of proceedings will only result in abuse of process, this Court will be well justified in quashing the proceedings in exercise of its inherent powers. Having gone through the entire materials, I am of the considered view that the initiation of prosecution proceedings against the petitioners herein cannot be regarded as a legitimate exercise. Crl.MC.Nos.4082 & 5015 of 2016 **==> picture [31 x 7] intentionally omitted <==** None of the ingredients are made out. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority and to cause injustice, the courts will have to step in. It would be an abuse of process of court to allow any action which would result in injustice. I am satisfied that the initiation of prosecution proceedings would amount to abuse of process of court and its quashment would serve the ends of justice. In the result, these petitions are allowed. The final report laid in Crime No.20 of 2014 of the Nadakkavu Police Station and all further proceedings pursuant thereto against the petitioners will stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** Bka/ Crl.MC.Nos.4082 & 5015 of 2016 ..9.. ## **APPENDIX OF Crl.MC 4082/2016** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF FIR IN CRIME NO.20/2014 OF NADAKKAVU POLICE STATION** **ANNEXURE A2** **THE CERTIFIED COPY OF CHARGE IN CRIME 20/2014 OF NADAKKAVU POLICE STATION NOW PENDING BEFORE JFMC-IV KOZHIKODE** ## **APPENDIX OF Crl.MC 5015/2016** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1: TRUE COPYOF THE FIR DATED 08/01/2014 IN CRIME 20/2014 OF THE NADAKKAVU POLICE STATION** **ANNEXURE A2: TRUE COPYOF THE FINAL REPORT IN CRIME NO.20/2014 OF THE NADAKKAVU POLICE STAQTION EPDNING IN C.C. NO.438/2016ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE -IV, KOZHIKODE`**