Deepak Dayal v. State of Kerala and M.Kunjachan John

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 18[TH] DAY OF AUGUST 2021 / 27TH SRAVANA, 1943** **CRL.MC NO. 3280 OF 2011** **(C.C.NO.387/09 ON THE FILES OF JUDICIAL FIRST CLASS** **MAGISTRATE COURT, MAVELIKKARA)** **PETITIONER/ACCUSED:** **DEEPAK DAYAL, AGED 46, S/O.KESHAVE DAYAL J5-19, DLF, PHASE-II, GURGAON-122 002, HARYANA STATE.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR SMT.RENJINI RAJENDRAN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 M.KUNJACHAN JOHN, AGED 68 THIRUCHUVATTIL MANUEL VILLA, CHERUKOL P.O., MAVELIKKARA. R1 BY PP SRI.T.K.VIPIN DAS R2 BY ADV SRI.R.KRISHNA RAJ** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.08.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.3280 of 2011 2 ## **ORDER** The accused in C.C.No.387 of 2009 on the files of the Judicial First Class Magistrate Court, Mavelikkara filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (Cr.P.C.) seeking quashment of original of Annexure-A1 complaint and all further proceedings leading to taking cognizance of the same. The 2[nd] respondent is the defacto complainant. 2. The 2[nd] respondent filed a complaint under Section 190, Cr.P.C. against the petitioner alleging commission of offences punishable under Sections 409, 420, 465, 467 and 468 of the Indian Penal Code. His case is that he is a non-resident Indian working in Kuwait and the petitioner-accused who is the holder of Indian Passport No.Z 1321068 issued by embassy of India in Bangkok, Thailand fraudulently obtained Rs.8 lakhs from him, including amounts from his deposit in Union Bank of India, P.B.No.101, Anupam Complex, Mitchel Junction, Mavelikkara promising to return the money with interest after 3 years through his account in Union Bank of India, Mitchel Junction, Mavelikara. The petitioner-accused collected money from him on 18.4.2001, 15.7.2002 and he used to send monthly statements showing the interest accumulated on complainant's deposit till November, 2004. Crl.M.C.No.3280 of 2011 3 According to him, thereafter he did not get any response from him. It is alleged that the petitioner-accused made him to believe that he is the Country Manager of ASIA PACIFIC INVESTMENT MANAGEMENT LTD., Registered office: Cheque Building # 216 Main Street, P.O.Box: 116 Road Town, Tortola, British Virgin Islands and later, on enquiry, it is understood that Asia Pacific Investment Management Ltd. is a fictitious entity. He would further allege that the petitioner-accused understood to have collected large amounts of money from several non-resident Indians and had created several false documents for that purpose. Furthermore, he would allege that the petitioner-accused collected money with an evil intention to defraud him. He has also stated in the complaint that part of the money was collected from his account in Union Bank of India, Mavelikkara. 3. The case put forth by the petitioner for seeking quashment of the complaint and further proceedings is that there is absolutely no truth in the various allegations made in Annexure-1 complaint and that it was filed before the Judicial First Class Magistrate Court, Mavelikkara by artificially creating jurisdiction with the evil design to coerce him to face a prosecution at a place where he has not set his legs so far. He would also state that he joined M/s.Asia Pacific Investment Management Ltd. in its Thailand representative office as the Representative Office Manager Crl.M.C.No.3280 of 2011 4 and that the said company is having its registered office at Cheque Building # 216 Main Street, P.O.Box: 116 Road Town, Tortola, British Virgin Islands. He would also state that later the company was officially liquidated through due process of law and he has produced Annexures-2 to 5 to contend that as per Annexure-2 the Court of Appeal in Kuwait acquitted him from all charges, that Annexure-4 would reveal that after investigation Thailand Police opined not to file a criminal case against him and that as per Annexure-5 the securities and futures commission, Hongkong conducted enquiries and exonerated him. Certainly, those are not matters which should be considered by this Court in this proceedings under Section 482, Cr.P.C. as this court cannot conduct a mini trial to pronounce on the admissibility and verity of such documents. I am of the view that the only contention that could be gone into in this proceedings is the contention regarding the lack of territorial jurisdiction of the Judicial First Class Magistrate Court, Mavelikkara. 4. To contend that the Judicial First Class Magistrate Court, Mavelikkara lacks territorial jurisdiction the learned Counsel for the petitioner relied on the decisions in **Mohandas** v. **Jayarajan (2001(2) KLT 748)** , **Lee Kun Hee** v. **State of U.P. (2012(1)KLT SN.82 (Case No.92) SC** , **Y.Abraham Ajith and Others** v. **Inspector of Police, Chennai and Another (2004) 8 SCC 100** , **Union of India and** Crl.M.C.No.3280 of 2011 5 ## **Others** v. **Adani Exports Ltd. And Another (2002) 1 SCC 567** and **SW Palanipkar & Ors.** v. **State of Bihar and Another (2002) 1 SCC** **241)** . The learned counsel for the 2[nd] respondent contended that the contentions raised by the petitioner based on the said decisions are unsustainable and prima facie the second respondent has established before the Judicial First Class Magistrate Court, Mavelikkara that it has territorial jurisdiction and further that prima facie the ingredients to attract the alleged offences. 5. Before considering the rival contentions I think it only appropriate to look into the scope of power under section 482, Cr.P.C. In the decision in **Rashmi Kumar (Smt.)** v. **Mahesh Kumar Bhada** reported in **(1997) 2 SCC 397** the Hon’ble Apex Court held that inherent powers of the Court are meant to be exercised for securing the ends of justice and not meant for interfering with mere technicalities of law. In the decision in **State of Punjab** v. **Kasturi Lal & Others** reported in **AIR 2004 SC 4087** the Apex Court held that though it is open to a High Court for entertaining a petition under Section 482, Cr.P.C. to quash charges framed by the trial Court, same cannot be done by weighing the correctness or sufficiency of evidence. Thus, in a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the Crl.M.C.No.3280 of 2011 6 prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. It is to be noted that even where Magistrate has power under Section 190, Cr.P.C. to take cognizance he would not be precluded of his power under Section 200 Cr.P.C. In the case on hand, obviously, the learned Magistrate has examined upon oath the complainant and also his witness, for taking cognizance. I am of the view that the said exposition of law will apply with equal force in a case where according to Section 190, Cr.P.C. the Magistrate took cognizance of an offence upon receiving a complaint of facts which constitute such offence, that too after following such a procedure. At this stage, when a complaint and all further proceedings are sought to be quashed under Section 482 Cr.P.C. this Court could neither embark upon an enquiry as to whether the allegations in the complaint are likely to be established by evidence nor could judge the probability, reliability or genuineness of the allegations made therein. A Full Bench of the Delhi High Court held that High Court could not examine the sufficiency of reasons given by the Magistrate while issuing process after applying his mind and further that it is not the province of the High Court to enter into the merits and demerits of the case in exercise of inherent power under Section 482 Cr.P.C. That apart, Crl.M.C.No.3280 of 2011 7 it was held that in such proceedings the Court could not go into the truthfulness of allegations. Once a complaint discloses commission of an offence, the veracity of allegations is not to be tested and the same has to be tested in the backdrop of evidence which is yet to come on record. (See the decision in **Gurcharan Singh Bhawani** v. **State & Ors.** reported in **2001 (94) DLT 813 (FB)(Delhi)** . Above all, I am of the considered view that when being called upon to exercise the power under Section 482 Cr.P.C. this Court should keep in mind the position that this Court is not to function as a Court of appeal or revision and therefore, should not enter into appreciation of evidence. I am also of the view that the correctness of the allegations could not be looked into in this proceedings under 482 Cr.P.C. 6. Besides the aforesaid position revealed from the decisions I am of the view that the following provisions and positions of law with respect to territorial jurisdiction are also to be looked into. Section 177, Cr.P.C. provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed. It is one of general applications. Though the word ‘ordinarily’ is used in the section it cannot be disputed that the said word can be construed only as “except where provided otherwise in the Code.” Section 177 makes a general provision whereas, Section 181(4) makes a Crl.M.C.No.3280 of 2011 8 specific provision with regard to an offence of criminal misappropriation or criminal breach of trust. Sections 177 to 188, Cr.P.C. deal with venue and Section 462, Cr.P.C. provides that no proceedings in a wrong place shall be set aside unless it appears that such error has in fact occasioned a failure of justice. In view of the nature of the rival contentions and the relevant provisions the decision in **Dipanker Dutt Gupta & Others** v. **State of Bihar & Others** reported in **2007 Crl.L.J 4360** assumes relevance. Going by the said decision, a preliminary objection as to the place of trial can be raised before the Magistrate Court and in case of an adverse order it can be taken up before the High Court. The High Court concerned also will have power to take action suo motu under Section 397(5), Cr.P.C. even if an application for revision was not filed. 7. In the decision in **Asit Bhattacharjee** v. **Hanuman Prasad Ojha and Others** reported in **AIR 2007 SC 1925** it was held that offences of cheating and criminal misappropriation can be investigated and tried at a place where fraudulent representation was made or where property had been entrusted or was to be accounted for. As noted earlier, the 2nd respondent who is the defacto complainant would allege that the petitioner-accused had collected Rs.8 lakhs with an evil intention to defraud him and that part of the money was collected from his account in Union Bank of India, Mavelikkara. On that aspect, the Crl.M.C.No.3280 of 2011 9 witness present who is the Manager of the said branch of Union Bank was examined on oath besides the 2[nd] respondent. On such examination he would state that the 2[nd] respondent had maintained an account in the branch and 14399.47 dollars had been transferred from the account of the 2[nd] respondent herein in the name of Asia pacific Investment Management Limited and obviously, documents are also produced to establish the same. The case of the petitioner is that the complaint was filed before the Judicial First Class Magistrate Court, Mavelikkara by artificially creating jurisdiction with the evil design to coerce him to face a prosecution at a place where he has not set his legs so far. In support of the same he has taken various contentions. When this be the position and in the light of the rival contentions and what was brought out when the Magistrate examined the 2[nd] respondent/the complainant and also his witness present, in terms of the provisions under Section 200 Cr.P.C. the question is whether it is permissible to quash the complaint and all further proceedings therefrom. 8. In the case on hand cognizance was taken after examining the complainant and his witness on oath. In such circumstances and in view of the discussion of the position of law as above I have no hesitation to say that this Court could not go into the truthfulness of the allegations disclosing commission of offences, the veracity of allegations Crl.M.C.No.3280 of 2011 10 in view of the position that they are to be tested in the backdrop of evidence which is yet to come on record. On going through the materials on record I am of the firm view that even for coming into a conclusion with respect to the tenability of the contention pertaining to territorial jurisdiction this Court has to adopt a process akin to mini trial in view of the nature of the rival contentions. The decision in **Lee Kun Hee** v. **State of U.P. (2012 (1) KLT SN 82 (C.No.92) SC)** is worthy for reference in the contextual situation. While dealing with Section 181(4), Cr.P.C. the Apex Court held that Court within whose jurisdiction, the whole or part of the consideration were required to be returned or accounted for, would have jurisdiction to try the offence. Section 179, Cr.P.C. vests jurisdiction for trial in a Court, within whose jurisdiction anything has been done with reference to an alleged crime and also where the consequences of the criminal action ensues, it was held. Furthermore, it was held that Section 181(4) Cr.P.C. leaves no room for any doubt that culpability is relatable even to the place at which consideration is required to be returned or accounted for. The relevant portion of the decision in **State of Haryana** v. **Bhajan Lal (1992 Supp. (1) SCC 335)** was also quoted therein thus:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary Crl.M.C.No.3280 of 2011 11 power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Crl.M.C.No.3280 of 2011 12 accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act 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 accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 9. In such circumstances, after going through the decisions relied on by the petitioner I am of the view that a further consideration in the light of the said decisions relied on by the petitioner could not make this Court to do an exercise to find out veracity and truthfulness of the allegations and the statement of the complainant and his witness, on oath in relation to the territorial jurisdiction. In the above circumstances, I do not find any merit in the contentions. Consequently, this Crl.M.C. stands dismissed. However, I Crl.M.C.No.3280 of 2011 13 make it clear that this will not prejudice the petitioner to take up the objection regarding territorial jurisdiction appropriately before the Magistrate Court and in case of sufferance of an adverse order to take up the matter, in accordance with law. Sd/- **C.T.RAVIKUMAR Judge** TKS