High Court of KeralaSingle JudgeCrl.M.C disposed of; one month to surrender; al...
Crl.M.C No. 6100 of 2013 (Crime No. 1387/2013, Kadavanthra Police Station, Ernakulam) v. State of Kerala and Subhash Vasudevan
Case / Petition Number:Crl.MC No. 6100 of 2013
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- A. Hariprasad
- Judgment Date
- 2014-11-19
- Court Decision / Holding
- Crl.M.C disposed of. The court granted the petitioner one month's time from the date of the order to surrender in accordance with Bail Application No. 7741/2013 and directed that all pending interlocutory applications be dismissed.
- Final Disposition
- Crl.M.C disposed of; one month to surrender; all pending interlocutory applications dismissed.
Parties to the Case
Appellants / Petitioners
- C.K. Vijayan, aged 50 years, Chairman and Director, Vijaya Luxury Housing Projects (P) Ltd
Respondents
- State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
- Subhash Vasudevan, S/o Vasudevan, residing at [address not stated]
Legal Representation & Advocates
Counsels for Petitioners
- • Sri P.K. Babu
Counsels for Respondents
- • Sri K. Anand
- • Public Prosecutor Sri K.K. Rajeev
Case Synopsis & Summary
This petition under Section 482 Cr.P.C. challenges an FIR (Crime No. 1387/2013) registered by Kadavanthra Police under sections 406, 409, 420 and 506(1) IPC. The petitioner, C.K. Vijayan, is the Chairman and Director of Vijaya Luxury Housing Projects (P) Ltd, a real estate company, and is connected with various related businesses. The defacto complainant sought a 12% share in the company and entered into a settlement with the petitioner; annexures reveal a memorandum of understanding, Form No. 32, board resolutions, and various sale deeds and payments. A settlement dated 14-08-2013 and a prior bank notice under SARFEASI (Security) Act are also part of the factual matrix. The petitioner contends this is largely a civil dispute and that no offence under sections 406, 409, 420 IPC is disclosed; the complaint’s institution and investigation are argued to be misused. The respondent contends that the petitioner clandestinely alienated company assets and acted contrary to agreements, raising potential criminal liability for breach of trust and cheating, among others. The court notes the matter is at the initial stage of investigation and does not decide merits. Relying on G. Sagar Suri, it acknowledges the risk of abusing process but ultimately grants relief.
Provisions of Law Cited
Cr.P.C. Section 482IPC sections 406, 409, 420, 506(1)SARFEASI ActCompanies Act, 1956
Legal Doctrines & Maxims
- Power under Section 482 Cr.P.C can be invoked to quash an F.I.R in an appropriate case.
- Higher courts should be loathe to quash FIRs; abuse of process of the court should be avoided.
- Abuse of process of the court is a relevant consideration in quashing proceedings.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner submitted this is primarily a civil dispute with no disclosed criminal offence; the complaint lacks prima facie material to sustain sections 406/409/420 IPC; investigation should be stayed and not converted into criminal prosecution; reliance on the principle that 482 Cr.P.C can be used to quash FIRs in appropriate cases was urged, though caution was urged against quashing at the threshold.
Contentions of Respondents
The defacto complainant argued that the petitioner engaged in clandestine alienation of company assets and breached the agreement terms (Annexures A-O). They contended offences of breach of trust, cheating, and related offences can be invoked; the investigation should not be prematurely quashed; there is a possibility of assets being disposed of despite court actions; the stay of investigation was cited but the court’s earlier stance should not prejudice ongoing inquiries.
Cited Precedents (1)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| G. Sagar Suri and Another v. State of U.P and Others | (2000) 2 SCC 636 | Positive | Court relies on this Supreme Court authority to recognize that Section 482 Cr.P.C can be invoked to quash an F.I.R in appropriate cases and to admonish against abuse of process. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD**
**WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936**
## **Crl.MC.No. 6100 of 2013 () ---------------------------**
**CRIME NO. 1387/2013 OF KADAVANTHRA POLICE STATION , ERNAKULAM.**
## **PETITIONER(S)/ACCUSED:**
**------------------------------------------**
**C.K.VIJAYAN, AGED 50 YEARS, S/O.KRISHNANKUTTY, CHAIRMAN AND DIRECTOR, M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD, HAVING ITS REGISTERED OFFICE AT 37/991, 1ST FLOOR, EMMY SQUARE, S.A.ROAD, ELAMKULAM, COCHIN - 682 020.**
**BY ADV. SRI.P.K.BABU.**
## **RESPONDENT(S)/COMPLAINANT :**
**-------------------------------------------------**
**1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **2. SUBHASH VASUDEVAN,**
**S/O.VASUDEVAN, RESIDING AT FLAT NO.15C, DUKES SKYLINE IMPERIAL GARDEN, KALOOR, COCHIN - 682 017.**
**R2 BY ADV. SRI.K.ANAND. R1 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **Crl.MC.No. 6100 of 2013 ()**
## **---------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS :**
## **-------------------------------------**
|**ANNEXURE-A **|**:**|**TRUE COPY OF MEMORANDUM OF UNDERSTANDING**|
|---|---|---|
|||**ENTERED INTO BETWEEN M/S.VIJAYA LUXURY HOUSING**|
|||**PROJECTS (PVT) LTD AND THE 2ND RESPONDENT ON**|
|||**19.5.2007.**|
|**ANNEXURE-B **|**:**|**TRUE COPY OF FORM NO.32 FILED BY VIJAYA LUXURY**|
|||**HOUSING PROJECTS PVT.LTD BEFORE THE REGISTRAR OF**|
|||**COMPANIES.**|
|**ANNEXURE-C **|**:**|**TRUE COPY OF RESOLUTION DATED 27.3.2010 PASSED BY THE**|
|||**M/S.VIJAYA LUXURY HOUSING PROJECTS PVT.LTD.**|
|**ANNEXURE-D **|**:**|**TRUE COPY OF VOUCHERS OF M/S.VIJAYA LUXURY HOUSING**|
|||**PROJECTS (P) LTD.**|
|**ANNEXURE-E **|**:**|**TRUE COPY OF FORM 32 SUBMITTED BY THE VIJAYA**|
|||**HOSPITALITY AND RESORTS LIMITED BEFORE THE**|
|||**REGISTRAR OF COMPANIES.**|
|**ANNEXURE-F **|**:**|**TRUE COPY OF DETAILS OF PAYMENT GIVEN TO THE 2ND**|
|||**RESPONDENT FROM M/S.VIJAYA LUXURY HOUSING PROJECTS**|
|||**(P) LTD.**|
|**ANNEXURE-G **|**:**|**TRUE COPY OF DETAILS OF PAYMENT GIVEN TO THE 2ND**|
|||**RESPONDENT FROM M/S.VIJAYA HOSPITALITY AND RESORTS**|
|||**LTD.**|
|**ANNEXURE-H **|**:**|**TRUE COPY OF RESOLUTION DATED 2.12.2011 PASSED BY THE**|
|||**VIJAYA LUXURY HOUSING PROJECTS PVT.LTD.**|
|**ANNEXURE-I**|**:**|**TRUE COPY OF SALE DEED NO.1123/12 DATED 16.3.2012**|
|||**EXECUTED BY THE 2ND RESPONDENT AS DIRECTOR OF THE**|
|||**M/S.VIJAYA LUXURY HOUSING PROJECTS PVT.LTD.**|
|**ANNEXURE-J **|**:**|**TRUE COPY OF NOTICE DATED 15.1.2013 ISSUED BY THE**|
|||**FEDERAL BANK LTD.**|
|**ANNEXURE-K **|**:**|**TRUE COPY OF FORM 32 FILED BY THE VIJAYA HOSPITALITY**|
|||**AND RESORTS LTD BEFORE THE REGISTRAR OF COMPANIES.**|
|**ANNEXURE-L **|**:**|**TRUE COPY OF AGREEMENT OF SALE EXECUTED BETWEEN**|
|||**M/S.VIJAYA LUXURY HOUSING (P) LTD AND THE 2ND**|
|||**RESPONDENT ON 18.10.2012.**|
|**ANNEXURE-M **|**:**|**TRUE COPY OF SALE DEED NO.5412 OF 2012 OF ERNAKULAM**|
|||**S.R.O DATED 26.12.2012 EXECUTED IN FAVOUR OF 2ND**|
|||**RESPONDENT.**|
**Crl.MC.No. 6100 of 2013 ()**
**-2-**
|**ANNEXURE-N **|**:**|**TRUE COPY OF AUTHORIZATION DATED 15.5.2013 ISSUED BY**|
|---|---|---|
|||**THE 2ND RESPONDENT.**|
|**ANNEXURE-O **|**:**|**TRUE COPY OF AGREEMENT EXECUTED ON 14.8.2013**|
|||**BETWEEN M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD**|
|||**AND 2ND RESPONDENT.**|
|**ANNEXURE-P **|**:**|**TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE SUB**|
|||**INSPECTOR OF POLICE, KADAVANTHRA POLICE STATION ON**|
|||**23.10.2013.**|
|**ANNEXURE-Q **|**:**|**TRUE COPY OF LETTER DATED 24.10.2013 SUBMITTED BY THE**|
|||**2ND RESPONDENT BEFORE THE VILLAGE OFFICER,**|
|||**ELAMKULAM VILLAGE.**|
|**ANNEXURE-R **|**:**|**TRUE COPY OF COMPLAINT SUBMITTED BY VIJAYA LUXURY**|
|||**HOUSING PROJECTS PVT.LTD BEFORE THE CITY POLICE**|
|||**COMMISSIONER, COCHIN CITY ON 5.11.2013 AND**|
|||**ACKNOWLEDGEMENT RECEIVED FROM CITY POLICE OFFICE,**|
|||**KOCHI.**|
|**ANNEXURE-S **|**:**|**TRUE COPY OF O.S.NO.517 OF 2013 FILED BY THE 2ND**|
|||**RESPONDENT BEFORE THE SUB COURT, ERNAKULAM.**|
|**ANNEXURE-T **|**:**|**TRUE COPY OF I.A.NO.5337 OF 2013 IN O.S.NO.517 OF 2013**|
|||**FILED BY THE 2ND RESPONDENT BEFORE THE SUB COURT,**|
|||**ERNAKULAM.**|
|**ANNEXURE-U **|**:**|**TRUE COPY OF F.I.R.ALONG WITH COVERING LETTER OF NRI**|
|||**TRUST AND COMPLAINT OF 2ND RESPONDENT.**|
**RESPONDENT(S)' EXHIBITS : ---------------------------------------**
**R2(a) : TRUE COPY OF THE ORDER DATED 22-11-2013 IN B.A NO.7741/2013.**
## **//TRUE COPY//**
**P.A TO JUDGE**
**amk**
## **A.HARIPRASAD, J.**
**-----------------------------------------------Crl.M.C No.6100 of 2013**
**-----------------------------------------------Dated this the 19[th] day of November, 2014.**
## **O R D E R**
Petition filed under Section 482 Cr.P.C. Petitioner is the accused in Crime No.1387/2013 registered by Kadavanthra Police under Sections 406, 409, 420 and 506(1) I.P.C. Petitioner is a business man engaged in real estate, hotel projects etc. He is the Chairman and Director of M/s.Vijaya Luxuary Housing Project (P) Ltd., a company incorporated under the Companies Act, 1956. Company is engaged in construction of multi storied apartments. The company had purchased 47.2 cents of land at Jawahar Nagar, Kadavanthara and constructed multi storied residential apartments. The company owns other establishments at other places. M/s.Vijaya Hospitality and Resorts Ltd. has a subsidiary company namely West Coast Homes (P) Ltd., which also owns property. It is also submitted that the petitioner is the Chairman and Director of M/s.New Vijaya Steels and Alloys (P) Ltd. He is the Chairman and Director of M/s.Daphne Hotels and
**Crl.M.C No.6100 of 2013 2**
Tourism (P) Ltd. He is engaged in other businesses as well. The defacto complainant expressed his desire to take up 12% share in M/s.Vijaya Luxury Housing Project (P) Ltd. The memorandum of understanding entered into between the petitioner and the defecto complainant is Annexure A. Annexure B is the Form No.32, inducting the second respondent/defacto complainant as Director in the company. Annexure C is the resolution dated 27-03-2010 authorizing the defacto complainant to draw a monthly remuneration of Rs.50,000/from 01-03-2010. Annexure D (18 vouchers) evidence the payments of the said amount. The defacto complainant wanted to increase his investment in shares to 13% and also to increase his other investment to Rs.3.4 crores. The company passed a resolution dated 02-12-2011 authorizing the defacto complainant to execute and present sale deeds in respect of the flats and undivided shares of land to purchasers. Annexure H
**Crl.M.C No.6100 of 2013 3**
document shows the execution of a sale deed by the defacto complainant for and on behalf of the company. In the meantime, Federal Bank Ltd. issued a notice to the company dated 15-01-2013 under the SARFEASI Act demanding money. Annexure J is the notice. Because of the sudden fall in the business of the company, the defacto complainant resigned from the company with effect from 18-09-2012 and Form No.32 was filed before the Registrar of Companies (Annexure K). Thereafter, dispute arose between the parties and finally an agreement was executed on 14-08-2013 between the company on one hand and the defacto complainant/second respondent on the other, agreeing on terms and conditions of settlement. It is Annexure O. It is also revealed from the documents that the parties became more enimical to one another and the defacto complainant filed a suit before Sub Court, Ernakulam for recovery of money. It is also an admitted fact that he obtained
**Crl.M.C No.6100 of 2013 4**
attachment over the properties belonging to the company.
2. Heard the learned counsel for the revision petitioner and the learned counsel for the defacto complainant. Learned Public Prosecutor is also heard.
3. Learned counsel for the petitioner submitted that this is predominantly a civil dispute and no criminal prosecution can be maintained in the light of the above said facts. It is further contended that the entire complaint filed by the defacto complainant before N.R.I Trust Centre, which was in turn forwarded to Inspector General of Police and then to Commissioner of Police, does not reveal any offence.
4. Per contra, learned counsel for the defacto complainant submitted that the petitioner clandestinely assigned the property belonging to the company. Even if the suit was decreed in his favour, due to nefarious attempts of the petitioner,
no asset would be left behind for realizing in execution of the
**Crl.M.C No.6100 of 2013 5**
decree. It is also submitted that the petitioner with an intention to cheat the defacto complainant took steps in violation of the terms in Annexure O agreement. Learned counsel for the petitioner strenuously contended that no offence of breach of trust either falling under Section 406 or 409 I.P.C is made out. Further, no offence of cheating can be discerned from the averments in the complaint. It may be too premature to make any observation on the allegations at this stage of investigation. The entire investigation has been stayed by this Court when the petition was admitted. I find that this is a fit case to permit the agency to complete the investigation.
5. Learned counsel for the petitioner places reliance on _**G.Sagar Suri and Another v. State of U.P and Others ((2000)2 S.C.C 636)**_ contend the following proposition. Firstly, power under Section 482 Cr.P.C can be invoked to quash an F.I.R in a appropriate case. Secondly, if the entire allegations in the
**Crl.M.C No.6100 of 2013 6**
complaint does not make out any reason to hold that the petitioner is guilty of an offence under Section 406 or 409 or 420 I.P.C, the exercise should be treated as an abuse of the process of the court. It is to be noted here that normal rule is that the higher courts should be loathe in quashing the first information reports. I do not wish to pass any order on merit in this matter.
6. Learned counsel for the respondent/complainant contended that as per Annexure R2(a) order in Bail Application No.7741/2013 this Court directed the petitioner to surrender before the court. It is also alleged that the petitioner defied the directions and so far he has not surrendered. Learned counsel for the petitioner requested some more time for compliance of the directions in the order on Bail Application No.7741/2013 passed by this court.
7. Considering the facts that the case is at the initial
**Crl.M.C No.6100 of 2013 7**
stage of the investigation, I find that the petitioner may again come before this court, if the investigation goes against him and culminates in laying a charge against him. Reckoning the submission of the learned counsel for the petitioner that the petitioner may be given some more time to surrender, I grant a month's time from today as a last chance for complying with the order passed by this court in Bail Application No.7741/2013. With this observation, Crl.M.C is disposed of.
All pending interlocutory applications will stand dismissed.
**Sd/-**
**A.HARIPRASAD, JUDGE.**
amk
//True copy//
P.A to Judge