Deepu Mohan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.MC.No. 2781 of 2019** **CRIME NO. 207/2018 OF MANANTHAVADY POLICE STATION, WAYANAD** ## **PETITIONER/2ND ACCUSED:** **DEEPU MOHAN, AGED 38 YEARS, S/O. MOHAN T.P., DEEPTHI AVADUKKA, PERAMBRA, KOZHIKODE.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.ROY JOSEPH** ## **RESPONDENTS/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031.**| |**2**|**STATION HOUSE OFFICER,**| ||**MANANTHAVADY POLICE STATION,**| ||**WAYANAD DISTRICT-670721.**| |**3**|**BABU K.L,**| ||**KARIYAKATTI, KUNIKARACHAL,**| ||**MANANTHODY, WYNAD-673592.**| ## **SRI. RAMESH CHAND - PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH CRL.MC:2808/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 2781 & 2808 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.MC.No. 2808 of 2019** **CRIME NO. 47/2018 OF THALAPUZHA POLICE STATION, WAYANAD** ## **PETITIONER/2ND ACCUSED:** **DEEPU MOHAN, AGED 38 YEARS, S/O. MOHAN.T.P., DEEPTHI AVADUKKA, PERAMBRA, KOZHIKODE.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.ROY JOSEPH** ## **RESPONDENTS/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| |**2**|**STATION HOUSE OFFICER,**| ||**THALAPUZHA POLICE STATION,**| ||**WAYANAD DISTRICT-670 644.**| |**3**|**VARKEY.N.A.,**| ||**S/O AUGUSTHY, ELLAMPUZHA HOUSE,**| ||**MUTHIRERY,THAVINJAL,THALAPUZHA,**| ||**WAYANAD DISTRICT-670 644.**| R1 BY **SRI.AJITH MURALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH CRL.MC:2781/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 2781 & 2808 of 2019 3 ## **ORDER** These petitions are filed by the common petitioner seeking to quash the proceedings in Crime No.47 of 2018 of the Thalappuzha Police Station and Crime No. 207 of 2018 of the Manathavady Police Station. In these crimes, he along with 3 others are accused of having committed offence punishable under Section 420 of the I.P.C. 2. The allegations in both these crimes are more or less identical in nature. The de facto complainant in both the cases are farmers engaged in the cultivation of pepper. They allege that the petitioner along with one Jithu @ Jithin, Unus, and one Rajesh approached them and offered to purchase their pepper produce for a price which was much higher than the market value by inducing them to believe that it was for the purpose of export. They were told that 10% of the value would be handed over and for the balance amount postdated cheques would be issued. Believing the words of the accused, the farmers handed over their entire produce to the accused and 10% of the value was handed over by way of cash. For the balance amount separate cheques were issued on an account maintained by Jithu. The cheques, when presented, were dishonoured for want of funds. Though the farmers approached the accused demanding the amount, they evaded from the same. Left with no alternative, they approach the Police and gave information based on Crl.MC.No. 2781 & 2808 of 2019 4 which the above crimes were registered. 3. The learned counsel appearing for the petitioner submitted that the allegations in the complaint will not make out an offence against the petitioner. According to the learned counsel, the transaction was between the de facto complainant in the respective cases and Jithu, and it was Jithu who had issued the cheque which was later dishonoured. It is further urged that the allegations, even if it is admitted as true in its entirety, would only make out a case of breach of contract and nothing more. The prosecution has no case that the petitioner had fraudulent intent at the inception, contends the learned counsel. 4. The learned Public Prosecutor vehemently refuted the submissions advanced by the learned counsel. It is submitted that numerous other crimes have been registered at various Police Stations against the petitioner and others and investigation is in the early stages. Poor farmers have been defrauded by a group of persons by assuring good value for their produce. It is further submitted that the petitioner had earlier approached this court seeking pre-arrest bail and this Court after evaluating the facts and circumstances and the nature of allegations had dismissed the application. 5. I have considered the submissions advanced. Terminating criminal proceedings at the threshold itself, or at the stage of FIR is to Crl.MC.No. 2781 & 2808 of 2019 5 be exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. 6. In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of Crl.MC.No. 2781 & 2808 of 2019 6 course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” Same view was taken in **Kurukshetra University v. State of** **Haryana** [1977 (4) SCC 451], and in **Som Mittal V Government of Karnataka** [2008 (3) SCC 574] and most recently in **Tilly Gifford V Michael Floyd Eshwar and Another (** AIR 2017 SC 3823 ). Crl.MC.No. 2781 & 2808 of 2019 7 7. After having bestowed my anxious considerations to the submissions and contentions and after having tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioner have failed to make out a case for quashing the criminal proceedings at the threshold itself. Furthermore, this Court will not be justified in embarking upon an enquiry to determine whether the allegations in the FIR are likely to be established by evidence. I see no reason to interfere with the criminal investigation at this stage. In the result, these petitions will stand dismissed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** IAP //TRUE COPY// P.A. TO JUDGE Crl.MC.No. 2781 & 2808 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1** **CERTIFIED COPY OF FIR NO.47/2018 RECEIVED FROM JUDICIAL FIRST CLASS MAGISTRATE COURTI, MANANTHAVADY** **ANNEXURE-A2 TRUE COPY OF THE COMPLAINT DATED 10.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE SI OF POLICE, NADAKAVU POLICE STATION** **ANNEXURE-A3 COPY OF THE RECEIPT DATED 12.2.2018 ISSUED FROM NADAKAVU POLICE STATION** **ANNEXURE-A4 TRUE COPY OF THE LEGAL NOTICE DATED 9.5.2018** **ANNEXURE-A5 TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER ANNEXURE-A6 TRUE COPY OF THE JUDGMENT DATED 3.10.2018 IN CRL.APPEAL NO.254/2015 OF SUPREME COURT OF INDIA** **RESPONDENTS' EXHIBITS:** NIL