Crl.M.C. No.1254 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`** ## **Crl.MC.No. 1254 of 2011** ## **----------------------------------** ## **C.C.NO.851/06 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA** ## **CRIME NO. 199/2055 OF NEYYATTINKARA POLICE STATION** ## **------------------** ## **PETITIONER :** ## **-----------------------** **DR.JAGADISWARAN, AGED 38 YEARS, S/O.P.CHELLAPPAN, 'NAVANEETHAM', THIRUPURAM, TRIVANDRUM - 695 133.** **BY ADVS.SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR** ## **RESPONDENTS :** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, NEYYATTINKARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## *** ADDITIONAL R2 IMPLEADED** **------------------------------------------** **2. ANIL.R, NEDUVELIL HOUSE, KANDALLUR (SOUTH P.O.), KAYAMKULAM - 690 535.** ## *** ADDITIONAL R2 IMPLEADED AS PRE ORDER DATED 05.07.2011 IN CRMA NO. 4150 OF 2011.** **R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH ADDL.R2 BY ADVS. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 1254 of 2011** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** - **ANNEXURE A1 : TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 05.03.2003 OF ROC.** - **ANNEXURE A2 : TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 16.10.2003 FROM SALE TAX.** - **ANNEXURE A2(A): TRUE COPY OF THE CERTIFICATE OF REGISTRATION FROM CENTRAL SALE TAX DEPTT.** - **ANNEXURE A3 : TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE COMPANY WITH THE TEA BOARD OF INDIA DATED 19.05.2003.** - **ANNEXURE A3(A): TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE COMPANY WITH THE TEA BOARD OF INDIA DATED 07.09.2004 FOR TEA EXPORT.** - **ANNEXURE A4 : COPY OF THE CERTIFICATE FOR IMPORT AND EXPORT DATED 03.08.2004.** - **ANNEXURE A5 : COPY OF THE APPOINTMENT LETTER DATED 30.11.2001 FROM MANJUSHREE TEA OF BIRLA GROUP.** - **ANNEXURE A6 : TRUE COPY OF THE REGISTERED NOTICE DATED 31.12.2004. ANNEXURE A6(A): TRUE COPY OF THE REGISTERED NOTICE DATED 21.01.2005. ANNEXURE A6(B): TRUE COPY OF THE REGISTERED NOTICE DATED 28.02.2005. ANNEXURE A6(C): TRUE COPY OF THE REGISTERED NOTICE DATED 18.03.2005. ANNEXURE A6(D): TRUE COPY OF THE REGISTERED NOTICE DATED 01.04.2005. ANNEXURE A6(E): TRUE COPY OF THE REGISTERED NOTICE DATED 30.05.2005 ANNEXURE A7 : TRUE COPY OF THE NOTICE SENT BY PETITIONER TO POLICE ANNEXURE A7(A): TRUE COPY OF THE POSTAL RECEIPT FOR SENDING THE NOTICE.** - **ANNEXURE A8 : TRUE COPY OF THE MEDICAL RECORD FROM THE COMMUNITY HEALTH CENTER, POOVAR.** - **ANNEXURE A9 : TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 17864 OF 2005 DATED 01.08.2005.** - **ANNEXURE A10: TRUE COPY OF THE JUDGMENT DATED 04.01.2010 IN CRL.M.C.NO.2841/2009.** - **ANNEXURE A11: COPY OF THE ORDER OF THE JFCM - II NEYYATTINKARA IN C.M.P.NO.1454/2010 DATED 12.03.2010.** Msd. ## **Crl.MC.No. 1254 of 2011** **ANNEXURE A12: COPY OF THE ORDER OF THE SESSIONS COURT THIRUVANANTHAPURAM IN CRL.R.P.NO.44/2010 DATED 22.12.2010. ANNEXURE A13: TRUE COPY OF THE BIO DATA OF 2ND RESPONDENT. ANNEXURE A14: TRUE COPY OF THE CONFIRMATION OF 2ND RESPONDENT. ANNEXURE A15: TRUE COPY OF THE AGREEMENT WITH 2ND RESPONDENT. ANNEXURE A16: TRUE COPY OF THE CREDIT BILL. ANNEXURE A17: TRUE COPY OF THE SALE TAX RECEIPT. RESPONDENT(S)' ANNEXURES:** **NIL //TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.1254 of 2011 ---------------------------------------------Dated this the 27[th] day of June, 2014 ## **ORDER** This petition is filed u/s.482 of Cr.P.C. to quash Annexures-A11 and A12 in crime No.199/2005 of Neyyattinkara Police Station, which was filed u/ss.420, 406 and 465 IPC. The petitioner is the accused in the above case and the 2[nd] respondent is the defacto complainant. The petitioner approached Judicial First Class Magistrate CourtII, Neyyattinkara by filing C.M.P.No.1454/2010 in C.C.No.851/2006 to discharge him u/s.239 of Cr.P.C. After considering the police report, the documents sent with it u/s.173 Cr.P.C. and after examination of those documents, hearing the prosecution and the accused, the Magistrate was of the opinion that there were sufficient grounds for Crl.M.C.No.1254/11 2 presuming that the accused has committed the aforesaid offence and thus the petition was dismissed. Against that order, the petitioner approached Sessions Judge, Thiruvananthapuram by filing Crl.R.P.No.44/2010, which was dismissed by the Sessions Judge, by Annexure-A12 order. Aggrieved by that, the petitioner approached this Court with this petition. 2. The allegation against the petitioner is that the petitioner claiming himself to be the Managing Director and Proprietor of Jagadevi Trading Company, Thiruvananthapuram made advertisement in Kerala Kaumudi Daily dated 19.4.2004 calling for applications for dealership of selling the tea of their company and they are tea with name Tea and marketing Manjusree they demanded to deposit Rs.5 lakhs for getting dealership in Alappuzha District, accordingly, the 2[nd] respondent had Crl.M.C.No.1254/11 3 sent D.D in the name of the company of the petitioner for Rs.5 lakhs and thereafter he had also sent Rs.50,000/- for supply of six tonnes of tea. But, the petitioner had not supplied the articles and on enquiry, it was revealed that the petitioner had committed cheating and also made false publication and thereby committed the offence. In such circumstances, a complaint was filed before Judicial First Class Magistrate Court, Neyyattinkara, which was forwarded to Poovar Police Station for investigation. After completing investigation, final report was filed and the trial is progressing in the trial court. In the circumstances, the petitioner approached the trial court with a petition u/s.239 Cr.P.C. 3. Heard both sides. The learned counsel appearing for the petitioner contended that there was no ingredients to attract the alleged offence. The transaction between Crl.M.C.No.1254/11 4 the petitioner and the 2[nd] respondent is only a civil transaction and there are civil remedies available for the same. Hence, he prays to quash Annexures-A11 and A12. 4. The inherent power u/s.482 can be invoked 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 the Court or otherwise to secure the ends of justice. Apex Court in _**State of Haryana** v_ . _**Bhajanlal**_ , [1992 SCC (Crl) 426] held s follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can Crl.M.C.No.1254/11 5 ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance. The allegation of the petitioner in this case is that Annexures-A11 and A12 are passed by both courts without considering the material evidence placed in the trial court by the petitioner. It is admitted that the petitioner and the 2[nd] respondent had business transaction. The 2[nd] respondent's specific contention is that he paid Rs.5 lakhs by way of D.D. The petitioner also admitted that he received that amount. But, the 2[nd] respondent's allegation is that there was no Company registered as advertised by the petitioner. Therefore, it amounts to cheating. Crl.M.C.No.1254/11 6 Receiving of money and repayment claimed by the 2[nd] respondent are matters of evidence. When both parties admitted business transaction, the next question to be considered is that whether the alleged company was existed or incorporated at the time when the petitioner made advertisement. In this context, the relevant documents are to be verified. That can be done only during trial. When prima facie case is made out against the petitioner, this Court cannot invoke the inherent jurisdiction at this stage. 5. Having regard to the facts and circumstances of the case, I am of the opinion that this is not a fit case to invoke the inherent jurisdiction. Therefore, there is no merit in this petition and it is dismissed accordingly. However, the petitioner is directed to appear in the trial court and face trial within two weeks from the date of Crl.M.C.No.1254/11 7 receipt of a copy of this order. The learned Magistrate is directed to expedite the trial and dispose the matter according to law. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.1254/11 8