CRL.M.C. Nos.259 & 1187 of 2021, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945** **CRL.MC NO. 259 OF 2021** **AGAINST THE ORDER/JUDGMENT CMP 1796/2020 OF JMFC, KAKKANAD (TEMPORARY)** ## **PETITIONERS/ACCUSED NO.1 TO 11:** 1 DR.STEPHEN PUTHUMANA MANAGING DIRECTOR, M/S. NIRMAL INFOPARK (INDIA) LIMITED, NO. 14, KINFRA EXPORT PROMOTION, INDUSTRIAL PARK, KUSUMAGIRI P.O. KAKKANAD COCHIN, ERNAKULAM, KERALA - 682 030. 2 M/S. NIRMAL INFOPARK (INDIA) LIMITED, NO. 14, KINFRA EXPORT PROMOTION, INDUSTRIAL PARK, KUSUMAGIRI P.O. KAKKANAD COCHIN, ERNAKULAM, KERALA - 682 030. REPRESENTED BY MANAGING DIRECTOR. 3 MR. JOHN TITUS, CHAIRMAN, M/S. NIRMAL INFOPARK (INDIA) LIMITED, NO. 14, KINFRA EXPORT PROMOTION, INDUSTRIAL PARK, KUSUMAGIRI P.O. KAKKANAD COCHIN, ERNAKULAM, KERALA - 682 030. 4 DR. JOY ARAMBANKUDY CMI, DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION, INDUSTRIAL PARK LIMITED,, INFOPARK P.O.KAKKANAD 682 042. 5 SRI. SUNNY V PHILIP, DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION, INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD - 682 042. 6 SRI. ANTONY THALIYATH, DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD 682 042. 7 SRI. MATHEW PAUL THOLAYIL, DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD - 682 042. 8 SRI. GEORGE VARGHESE, Crl.M.C.Nos.259 & 1187 of 2021 2 DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD - 682 042. 9 SRI. PAPPACHANKALATHIL, DIRECTOR, NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD - 682 042. 10 SRI. P.E. VARGHESE, COO NIRMAL INFOPARK (INDIA) LIMITED, KINFRA EXPORT PROMOTION INDUSTRIAL PARK LIMITED INFOPARK P.O. KAKKANAD - 682 042. 11 MR. SUNIL KUMAR T., CFO, M/S. NIRMAL INFOPARK (INDIA) LIMITED NO. 14, , KINFRA EXPORT PROMOTION INDUSTRIAL PARK KUSUMAGIRI P.O. KAKKANAD, KOCHI, ERNAKULAM, KERALA - 682 030. BY ADVS. SANTHOSH MATHEW SRI.THOMAS J.ANAKKALLUNKAL SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL SMT.LEAH RACHEL NINAN SMT.NANDA SANAL ## **RESPONDENT/COMPLAINANT & STATE:** 1 M/S.ISDC PROJECTS (INDIA)PVT.LTD Crl.M.C.Nos.259 & 1187 of 2021 **==> picture [7 x 10] intentionally omitted <==** 10/1, 4TH FLOOR, LAKSHMI NARAYAN COMPLEX, PALACE ROAD, VASANTH ANAGAR, BENGALURU - 560 052, KARNATAKA. REPRESENTED BY ITS DIRECTOR SHONE BABU. 2 STATE OF KERALA,. REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN BY ADV.SMT.SEENA.C, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH Crl.MC.1187/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.259 & 1187 of 2021 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 CRL.MC NO. 1187 OF 2021** **AGAINST THE ORDER/JUDGMENT CMP 245/2021 OF JMFC,** **KAKKANAD (TEMPORARY)** ## **PETITIONERS/ACCUSED NO.1 TO 5:** 1 TOM MANNAPURATHU JOSEPH DIRECTOR-STATEGY AND DEVELOPMENT, M/S. ISDC PROJECTS (INDIA) PVT. LTD., MANNAPURATHU HOUSE, VAZHAKKULAM P.O., ERNAKULAM-686 670. 2 MOLLY PHILIP DIRECTOR, M/S. ISDC PROJECTS (INDIA) PVT. LTD., 712F (11/295), POWETH, KALATHIPPDY, VIJAYAPARAN, KOTTAYAM-686 001. 3 ANSU TOM DIRECTOR, M/S. ISDC PROJECTS (INDIA) PVT. LTD., MANNAPURATHU HOUSE, VAZHAKKULAM P.O., ERNAKULAM-686 670. 4 JOY THEKKEDATH PAULOSE DIRECTOR, M/S. ISDC PROJECTS (INDIA) PVT. LTD., CHOTTANIKARA P.O., KANAYANNUR, ERNAKULAM-682 312. 5 SHONE BABU DIRECTOR, M/S. ISDC PROJECTS (INDIA) PVT. LTD., NO.10/1, 4TH FLOOR, LAKSHMI NARAYANA COMPLEX, PALACE ROAD, VASANTH NAGAR, BENGALURU-560 052. Crl.M.C.Nos.259 & 1187 of 2021 5 BY ADVS. K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER/CIRCLE INSPECTOR OF POLICE, INFOPARK POLICE STATION, ERNAKULAM DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682 031. 2 DR. STEPHEN PUTHUMANA MANAGING DIRECTOR, M/S. NIRMAL INFOPARK (INDIA) LTD., INFOPARK P.O., KAKKANAD, KOCHI-682 042. BY ADVS. THOMAS J ANAKKALLUNKAL . JAYARAMAN S.(K/1244/2019) ANUPA ANNA JOSE KANDOTH(K/427/2007) MELBA MARY SANTHOSH(K/001148/2023) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH Crl.MC.259/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.259 & 1187 of 2021 6 **P.V.KUNHIKRISHNAN, J. ------------------------------** **Crl.M.C.Nos.259 & 1187 of 2021 ---------------------------------------------Dated this the 11[th] day of September, 2023** ## **ORDER** These Criminal Miscellaneous Cases are filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. These two Criminal Miscellaneous Cases are connected and therefore, I am disposing of these cases by a common order. 3. When these cases came up for consideration, the counsel appearing for the petitioners submitted that the entire dispute between the petitioners are settled and the proceedings initiated as private complaint in these cases can be quashed. An Affidavit is also filed stating that the Crl.M.C.Nos.259 & 1187 of 2021 7 entire disputes are settled. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavit filed by the victim in support of his contention. The counsel appearing for the victim also submitted that the matter is settled and the victim has no objection in quashing the prosecution. 5. The learned Public Prosecutor, on instructions, has expressed reservations about quashing the proceedings solely on the basis of the settlement. But the Public Prosecutor conceded that the matter is settled between the parties. 6. This Court has considered the submission of the petitioners, victim and the Public Prosecutor and has also gone through the records including the Crl.M.C.Nos.259 & 1187 of 2021 8 affidavit filed by the victim. 7. In **State of Madhya Pradesh v Laxmi Narayan and Others (2019 (5) SCC 688),** three judge bench of the Hon'ble Supreme Court has summarized the situation in which non compoundable offences can be quashed invoking the powers under Section 482 of the Code. The apex court in _**Laxmi Narayan**_ 's case (supra) also relied on the law laid down in **Gian Singh v. State of Punjab and another (2012 (10) SCC 303)** and **Narinder Singh and others v. State of Punjab and another (2014** **(6) SCC 466)** . The apex court in paragraph 13 of the _**Laxmi Narayan**_ 's case discussed the law in detail and the same is extracted hereunder: _“13. Considering the law on the point and the other decisions of this Court on the point, referred to herein above, it is observed and held as under: i) that the power conferred under S.482 of the Code to quash the criminal proceedings for the non - compoundable offences under S.320 of the Code can be exercised having overwhelmingly_ Crl.M.C.Nos.259 & 1187 of 2021 9 _and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;_ _ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;_ _iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;_ _iv) offences under S.307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under S.307 IPC and / or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under S.482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of S.307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of S.307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under S.307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital / delegate parts of_ Crl.M.C.Nos.259 & 1187 of 2021 10 _the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed / charge is framed and / or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated herein above;_ _v) while exercising the power under S.482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement / compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.”_ 8. Keeping in mind the above dictum laid down by the apex court, this court perused the facts in this case and also perused the documents produced by the parties. After going through the entire facts and circumstances I am of the considered opinion that the dispute is private in nature and the settlement can be Crl.M.C.Nos.259 & 1187 of 2021 11 accepted. Therefore, these Criminal Miscellaneous cases are allowed in the following manner: i. Crl.M.C.No.259/2021 is allowed by quashing Annexure-II FIR in Crime No.550/2020 of Infopark Police Station, Kakkanad and all further proceedings against the petitioners thereto. ii. Crl.M.C.No.1187/2021 is allowed quashing all further proceedings against the petitioners in Crime No.25/2021 of Infopark Police Station, Ernakulam. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.Nos.259 & 1187 of 2021 12 ## **APPENDIX OF CRL.MC 1187/2021** ## PETITIONER ANNEXURES |ANNEXURE A|CERTIFIED<br>COPY<br>OF<br>THE<br>CMP| |---|---| ||NO.245/2021 DATED 1.2.21 ON THE| ||FILES OF THE JUDICIAL FIRST CLASS| ||MAIGSTRATE<br>COURT,<br>KAKKANAD,| ||ERNAKULAM DISTRICT ALONG WITH| ||ANNEXURES.| |ANNEXURE B|CERTIFIED COPY OF THE FIR IN CRIME| ||NO.25/2020 OF INFOPARK POLICE| ||STATION, ERNAKULAM DISTRICT DATED| ||6.2.2021.| |ANNEXURE C|COPY<br>OF<br>THE<br>WRIT<br>PETITION| ||NO.562/2021 FILED BEFORE THIS| ||HON'BLE COURT (WITHOUT EXHIBITS).| Crl.M.C.Nos.259 & 1187 of 2021 13 ## **APPENDIX OF CRL.MC 259/2021** PETITIONER ANNEXURES |ANNEXURE I|CERTIFIED COPY OF THE COMPLAINT| |---|---| ||NUMBERED AS C.M.P. NO. 1796/2020| ||PENDING BEFORE THE CHIEF JUDICIAL| ||MAGISTRATE COURT, KAKKANAD, ENDORSED| ||ORDER OF JFCM KAKKANAD, DATED| ||30.12.2020.| |ANNEXURE II|TRUE COPY OF FIR NO. 0550 OF 2020 OF| ||INFOPARK POLICE STATION, KAKKANAD.| |ANNEXURE III|TRUE COPY OF THE NEWSPAPER REPORTS| ||FROM NATIONAL DAILIES AND OTHER| ||WEBSITES CONTAINING THE DETAILS OF| ||CHARGES AGAINST MR. TOM.| |ANNEXURE IV|TRUE COPY OF THE PROMISSORY NOTE| ||DATED 20.05.2013 ISSUED BY MR. TOMY| ||THOMAS ADMITTING THE RECEIPT OF INR| ||50,32,000/-| |ANNEXURE V|TRUE COPY OF THE PROMISSORY NOTE| ||DATED 05.05.2013 ISSUED BY MR. TOMY| ||THOMAS ADMITTING THE RECEIPT OF INR| ||58,48,000/-| |ANNEXURE VI|TRUE COPY OF THE CONSENT LETTER SENT| ||BY MR. TOMY THOMAS TO THE 1ST| ||PETITIONERS WIFE.| |ANNEXURE VII|TRUE COPY OF THE SHARE TRANSFER FORM| ||EVIDENCING<br>THE<br>9000<br>SHARE| ||TRANSFERRED TO MS. MARY JOSEPH.| |ANNEXURE VIII|TRUE COPY OF THE SHARE TRANSFER FORM| Crl.M.C.Nos.259 & 1187 of 2021 14 EVIDENCING THE 1500 SHARE TRANSFERRED TO MS. MARY JOSEPH. ANNEXURE IX TRUE COPY OF THE MOU DATED 17.10.2016 ENTERED INTO BETWEEN MR. TOMY THOMAS, AND 3 OTHERS AND THE 1ST PETITIONER. ANNEXURE X TRUE COPY OF THE LEASE DEED ENTERED INTO BETWEEN M/S. NIRMAL INFO PARK AND M/S. JAIN (DEEMED TO BE UNIVERSITY) DATED 22.05.2019. ANNEXURE XI TRUE COPY OF THE DEED OF ASSURANCE EXECUTED BETWEEN NIRMAL INFO PARK AND ISDC PROJECTS (INDIA) PRIVATE LIMITED, DATED 25.07.2019. ANNEXURE XII TRUE COPY OF THE PERSONAL DEED OF INDEMNITY DATED 29.07.2019 EXECUTED BR MRS. MOLLY PHILIP AND MRS. ANSU TOM. ANNEXURE XIII TRUE COPY OF THE PERSONAL DEED OF INDEMNITY DATED 29.07.2019 EXECUTED BY MR. TOM MANNAPURATHU JOSEPH. ANNEXURE XIV TRUE COPY OF THE DEED OF INDEMNITY DATED 25.07.2019 EXECUTED BY ISDC PROJECTS (INDIA) PRIVATE LIMITED. ANNEXURE XV TRUE COPIES OF THE COMPLAINT RECEIVED FROM VARIOUS SHAREHOLDERS RECEIVED BY THE COMPANY. ANNEXURE XVI TRUE COPIES OF THE SHARE CERTIFICATES ENTRUSTED BY MR. TOM AND THE COMPLAINT COMPANY WITH THE PETITIONER. ANNEXURE XVII AFFIDAVIT SWORN IN BY THE 1ST Crl.M.C.Nos.259 & 1187 of 2021 15 ## RESPONDENT ANNEXURE XVIII TRUE COPY OF THE NOTICE DATED 20.05.2020 SENT BY NIRMAL TO THE COMPLAINANT COMPANY. ANNEXURE XIX TRUE COPY OF THE LETTER DATED 26.05.2020 SENT BY NIRMAL TO KINFRA. ANNEXURE XX TRUE COPY OF THE LAWYER NOTICE DATED 15.06.2020 SENT BY NIRMAL. ANNEXURE XXI TRUE COPY OF THE LAWYER NOTICE DATED 16.06.2020 SENT TO MR. TOM AND THE COMPLAINANT COMPANY BY NIRMAL. ANNEXURE XXII AN REPLY NOTICE DATED 29.06.2020 ISSUED FOR THE COMPLAINANT COMPANY TO NIRMAL. ANNEXURE XXIII TRUE COPY OF THE REPLY NOTICE DATED 29.06.2020 ISSUED FOR THE COMPLAINT COMPANY TO NIRMAL. ANNEXURE XXIV TRUE COPY OF THE COMPLAINT DATED 10/07/2020 FILED BEFORE THE ROC BY THE COMPLAINT COMPANY. ANNEXURE XXV TRUE COPY OF THE RESPONDENT FILED BY NIRMAL TO THE COMPLAINT FILED BEFORE THE ROC BY HE COMPLAINANT COMPANY. ANNEXURE XXVI. TRUE COPY OF THE FIR NO. 872 OF 2018 DATED 26.10.2018 ON THE FILE OF THE MADHAPUR POLICE STATION. ANNEXURE XX VII TRUE COPY OF THE JUDGMENT DATED 29.12.2020 IN WPC NO. 29215 OF 2020. ANNEXURE XX VIII TRUE COPY OF THE PLAINT FILED BY THE 1ST PETITIONER DATED 14.01.2021 BEFORE THE SUB COURT, ERNAKULAM IN Crl.M.C.Nos.259 & 1187 of 2021 16 O.S. NO. 8/2021. ANNEXURE XXIX TRUE COPY OF THE NEWSPAPER ARTICLE APPEARED IN INDIAN EXPRESS DATED 7.1.2021. ANNEXURE XXX TRUE COPY OF THE EMAIL DATED 13.01.2021 SENT BY TOM TO THE SHARE HOLDERS. ANNEXURE XXXI: TRUE COPY OF THE INJUNCTION ORDER IN I.A.NO.04/2021 IN O.S.NO.08/2021 OF THE SUB COURT, ERNAKULAM. ANNEXURE XVII TRUE COPY OF THE LETTER NO. KIN/IX/KEPIP-EKM/(10/2019-20 DATED 15.05.2020 ISSUED BY THE KINFRA TO NIRMAL. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE