Danish Majeed v. State of Kerala and M.P. Ibrahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** ## **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Crl.MC.No. 4760 of 2013 () ---------------------------** ## **CRIME NO. 400/2011 OF VATAKARA POLICE STATION , KOZHIKODE** ## **PETITIONER(S): -------------** ## **DANISH MAJEED** **S/O.MAJEED, KOYITTIKANDY HOUSE, NEAR BSNL EXCHANGE, KAKKATTIL P.O, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL)** ## **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31** ## **2. M.P.IBRAHIM** **S/O.AHAMMAD, KUTTIKATTIL HOUSE, PONMERI AMSOM, PARAMBIL HOUSE, VATAKARA, KOZHIKODE DISTRICT, PIN 673 101.** **R2 BY ADV. SRI.N.M.MOHAMMED AYUB R1 BY ADV.RAMESHCHAND,PUBLIC PROSECUTOR** **THIS CRIMINAL MISCELLANEOUS CASE HAVING BEEN FINALLY HEARD ON 2.12.2016, THE COURT ON 30.5.2017 PASSED THE FOLLOWING:** ## **Crl.MC.No. 4760 of 2013 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE I. CERTIFIED COPY OF THE FIR IN CRIME 400/2011 OF BADAGARA POLICE STATION OF KOZHIKODE DISTRICT, ALONG WITH THE COMPLAINT DATED 18.04.11.** **ANNEXURE II. CERTIFIED COPY OF THE FINAL REPORT IN CRIME 400/2011 BADAGARA POLICE STATION OF KOZHIKOD DISTRICT DATED 21.11.2011.** **ANNEXURE III. TRUE COPY OF THE AWARDS AND CERTIFICATES GIVEN BY KERALA STATE AGRICULTURE DEPARTMENT AND KERALA STATE DAIRY DEVELOPMENT DEPARTMENT.** **ANNEXURE IV. TRUE COPY OF THE ORDER FORMS DATED 04.11.2010 AND 04.12.2010.** **ANNEXURE V. TRUE COPY OF THE TWO LETTERS DATED 03.02.11 ISSUED BY THE 2ND RESPONDENT AS THE PROPRIETOR OF NEELAGIRI DAIRY FARM ACKNOWLEDGING THE RECEIPT OF THE MACHINERIES.** **ANNEXURE VI. TRUE COPY OF THE ORDER FORM DATED 04.01.2011.** **ANNEXURE VII. TRUE COPY OF THE LETTER DATED 04.01.11.** **ANNEXURE VIII. TRUE COPY OF THE DETAILS OF THE COWS DATED 05.01.11.** **ANNEXURE IX. TRUE COPY OF THE PURCHASE ORDER DATED 13.1.11.** **ANNEXURE X. TRUE COPY OF THE LETTER DATED 04.03.11.** **ANNEXURE XI. TRUE COPY OF THE LETTER DATED 07.03.11.** **ANNEXURE XII. TRUE COPY OF THE NOTICE DATED 01.04.11.** **ANNEXURE XIII. TRUE COPY OF THE LAWYER NOTICE DATED 05.04.11 ISSUED BY ADVOCATE P.DIVAKARAN.** **ANNEXURE XIV. TRUE COPY OF THE LETTER ISSUED BY PETITIONER TO H.SRINIVAS DATED 12.04.11.** **ANNEXURE XV. TRUE COPY OF THE LETTER DATED 16.4.11 ISSUED BY H.SRINIVAS.** **RESPONDENT(S)' EXHIBITS ----------------------nil** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **A.M.BABU, J.** -----------------------------Crl.M.C.No. 4760 OF 2013 -----------------------------Dated 30[th] May, 2017 ## **ORDER** Petitioner is the accused in a criminal case. He seeks to quash a criminal prosecution against him. The relief is sought under Sec.482 of Cr.P.C. 2. The second respondent gave a statement in writing under Sec.154 of Cr.P.C. The statement was given against the petitioner and his father alleging commission of offences of cheating and criminal breach of trust. An FIR was registered. Annex-I is a certified copy of the FIR to which is attached the first information statement. Final report was filed against the petitioner alleging commission of offences under Secs 406 and 420 of IPC. Annex-II is a certified copy of the final report. The FIR and final report are sought to be quashed. 3. Heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned public prosecutor. 4. The following are the grounds taken by the petitioner to get the criminal prosecution against him quashed: The disputes between him and the second respondent are only civil disputes. 2 Crl.M.C.No. 4760 OF 2013 The allegations levelled against the petitioner are not sufficient to attract the offences alleged against him. The allegations against him are false, frivolous and baseless. The charge-sheet was filed without conducting proper investigation. 5. Admittedly there was a contract between the petitioner and the second respondent. The latter has stated his version of the contractual terms in the first information statement. His version is stated below: He placed an order with the second respondent for the supply of cows of the breed 'Holstein Friesians' and dairy equipments of the brand 'Delevel' for him to start and run a dairy farm. The price of the dairy equipments was Rs.18,15,289/-. The said amount was paid to the petitioner in advance. Sixty cows were to be supplied for a price of Rs.73,200/- per cow; totaling Rs.43,92,000/-. Rs.21,96,000/being 50% of the price of the cows was also paid in advance. The balance amount was to be paid within ten days of the delivery of the cows. 6. The petitioner has stated his case in the memorandum of Crl.M.C. He has not disputed the contractual terms stated in the above paragraph. The two payments referred to above are 3 Crl.M.C.No. 4760 OF 2013 also not seen disputed in the memorandum of Crl.M.C. 7. Admittedly the second respondent changed his mind and wanted only 30 cows to be supplied to him for the time being. He therefore informed the petitioner to supply only 30 cows for the price of Rs.21,96,000/- already paid. According to the second respondent, he instructed so on the very next day of placing the order with the petitioner. According to the petitioner, such an instruction came only after the order for 60 cows was placed by him with his vendor by name Sreenivasan. It is also contended that Sreenivasan was not amenable to supply only 30 cows as he had already arranged to deliver 60 cows to the second respondent. This is one dispute between the petitioner and the second respondent. 8. The petitioner contends that he supplied all the dairy equipments to the second respondent as agreed. According to the second respondent, only a few equipments were supplied to him and those equipments were of inferior quality not belonging to the brand 'Delevel', besides being defective. This is another dispute between the parties. 9. If the two disputes referred to above are the sole 4 Crl.M.C.No. 4760 OF 2013 disputes between the parties, it may be said that the disputes are only of a civil nature. But a reading of the first information statement suggests that it is not so. It is alleged therein that the petitioner and his father induced the second respondent to start a dairy farm offering every help including the supply of cows and dairy equipments. It is also alleged that believing the words of the petitioner and his father the second respondent and his partners had parted with a huge amount for the supply of cows and equipments to them and spent a huge amount for the construction of a building for the dairy farm. Another allegation is that although the petitioner informed that the amount of Rs.21,96,000/- taken from the second respondent was transferred to the account of one Nagarajan (not Sreenivasan) for the supply of cows, the second respondent on enquiry with the said Nagarajan understood that no money was paid to Nagarajan and that no order for supply of 60 cows was placed with the said person. The first information statement concludes to the effect that the petitioner and his father approached the second respondent to cheat him and grabbed huge amounts from him. Those allegations may be true or may not be. The correctness or 5 ## Crl.M.C.No. 4760 OF 2013 falsity of the said allegations is not a matter for inquiry in a proceedings under Sec.482 of Cr.P.C. There are specific allegations in the first information statement and those allegations suggest that the grievance of the second respondent is not merely a breach of contract, pure and simple. It is impossible to conclude that the allegations in the first information statement disclose only a dispute which is purely civil in nature. In an offence of cheating certain amount of civil disputes may also be involved. Equally it is impossible to conclude that the allegations in the first information statement do not attract any offence. 10. Another ground taken by the petitioner is that all the allegations in the first information statement against him are false, frivolous, baseless _et cetera_ . The learned counsel for the petitioner submitted that the documents produced by the petitioner would prove his contentions to be true. Annex-IV and annex-VI are stated to be copies of the order forms pertaining to the dairy equipments and cows respectively. Annex-V is stated to be a copy of the receipt allegedly issued by the second respondent acknowledging receipt of dairy equipments on 6 Crl.M.C.No. 4760 OF 2013 3.2.2011. Therefore, according to the learned counsel for the petitioner, the second respondent cannot be heard to say that he did not receive the equipments. Annex-VII is a copy of a letter stated to have been sent by the second respondent on 4.1.2011 requesting to deliver 60 cows on 28.2.2011 and undertaking to pay the balance amount of Rs.21,96,000/- on 17.2.2011. Annex-V receipt and annex-VII letter are not admitted documents. The learned public prosecutor suspected the genuineness of those documents. The learned counsel for the second respondent disputed those documents. It was submitted by the learned counsel for the second respondent that annex-V and annex-VII were fabricated by the petitioner in order to have a defence in the criminal case. It cannot be decided in the present proceedings as to whether those documents are genuine or not. It is only to be stated that the petitioner cannot call upon this court to quash the criminal case against him on the strength of disputed documents. 11. The learned counsel for the petitioner relied on annexIX document. The same is stated to be a copy of the purchase order for 60 cows allegedly placed by the petitioner with his vendor. Annex-IX is dated 13.1.2011. Annex-XI is a copy of the 7 Crl.M.C.No. 4760 OF 2013 letter issued to the petitioner by the second respondent. The point attempted to be canvassed was that annex-XI dated 7.3.2011 instructing to deliver only 30 cows was issued only after placing annex-IX order on 13.1.2011. The learned counsel for the second respondent submitted that even annex-IX would not support the case of the petitioner that he placed the order for 60 cows with his vendor before receipt of annex-XI letter of the second respondent restricting the need to 30 cows. The learned counsel submitted that although annex-IX was shown to be dated 1.3.2011 it could be sent only on 23.4.2011. The photocopy of the postal receipt appearing on the top of annex-IX shows the date 23.4.2011. Therefore, according to the learned counsel for the second respondent, annex-IX dated 13.1.2011 was sent only on 23.4.2011 after receiving annex-XI dated 7.3.2011. It was also submitted that what annex-IX would reveal was not that Rs.21,96,000/- was already paid, but only that the amount would be paid to Sreenivasan along with annex-IX order for supply of 60 cows. I am not entering any finding on the rival contentions on this aspect, but only state that the submissions of the learned counsel for the second respondent cannot be brushed aside 8 Crl.M.C.No. 4760 OF 2013 easily. I may also state that whether the allegations in the first information statement against the petitioner are true or false are outside the purview of the enquiry in a proceedings under Sec.482 of Cr.P.C. 12. It is also a ground taken by the petitioner that the charge-sheet was filed against him without conducting proper investigation. That is a general statement in the memorandum of Crl.M.C without any supporting material. The said ground cannot therefore be taken seriously. 13. The learned counsel for the petitioner relied on the decision of the apex court in **Jose V.Y vs. State of Gujarat [(2009) 3 SCC 78].** That was a case where a criminal prosecution was quashed holding that a breach of contract simplicitor would not constitute an offence under Sec.420 of IPC. It is already seen that the instant case is not one where the first information statement discloses only a breach of contract. The documents considered by the apex court in the said case were admitted documents. Here it is not so. The decision is not helpful to the petitioner. 14. Another decision relied on by the learned counsel for 9 Crl.M.C.No. 4760 OF 2013 the petitioner was **Vesa Holdings Private Ltd vs. State of Kerala [(2015) 8 SCC 293]** . It was held that for the purpose of constituting an offence of cheating the complainant was required to show that the accused had fraudulent or dishonest intention at the time of making the promise or representation. A reading of the first information statement in the present case gives such an impression, whether or not the allegations are true. Therefore the aforesaid decision is also of no help to the petitioner. 15. I shall conclude. No ground exists to quash the criminal proceedings against the petitioner. The criminal miscellaneous case is only to be dismissed. 16. Dismissed. sks/24.5.2017 **A.M.BABU Judge**