G. Arun Das v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934** ## **WP(C).No. 3221 of 2011 (C)** **-----------------------------------** **PETITIONER(S):** **----------------------** **G.ARUN DAS, S/O.K.P.GANGADHARAN, AGED 40, LEKHA NIVAS, M.T.V. NAGAR/55, KADAPPAKKADA, VADAKKEVILA VILLAGE, KOLLAM.** **BY ADVS.SRI.N.DHARMADAN (SENIOR) SMT.D.P.RENU** **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM - 695 001** **2. DY.SUPERINTENDENT OF POLICE, KOLLAM - 691 001** **3. SUB INSPECTOR OF POLICE, KILIKOLLOOR, KOLLAM DISTRICT - 691 004** **4. A.SHANAVASKHAN,THATTARUVILA VEETTIL, ATTARUMUKKU, VADAKKUMKARA KIZHAKKE CHERRY, MAYYANAD VILLAGE, MAYYAPAND , KOLLAM - 691 303** **5. PRIJU KUMAR,T.V.S.AUTOMOBILES, FRANCHISEE OF MY TVS, KALLAMBALAM, KOLLAM DISTRICT - 695 605** **R1 BY GOVERNMENT PLEADER SRI.P.P.RANJITH R4 BY ADV. SRI.C.RAJENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2012, THE COURT ON 20/12/2012 DELIVERED THE FOLLOWING:** **MJL** ## **WP(C).No. 3221 of 2011 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : TRUE COPY OF FRANCHISEE AGREEMENT DATED 28/04/2003 EXT.P2 : TRUE COPY OF FIR DATED 14/02/2010 REGISTERED BY 3RD RESPONDENT EXT.P3 : TRUE COPY OF LETTER ISSUED BY TVS TO PETITIONER DATED 11/01/2008 EXT.P4 : TRUE COPY OF REMAND APPLICATION DATED 4/08/2010 BY 3RD RESPONDENT** ## **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** ## **P A TO JUDGE** **MJL** ## **S.S.SATHEESACHANDRAN, J. ------------------------------W.P.(C).NO.3221 OF 2011 ----------------------------------Dated this the 20[th] day of December, 2012** ## **J U D G M E N T** Petitioner is the accused in a crime case registered at Kilikolloor Police Station for the offences punishable under Sections 420 and 381 of the Indian Penal Code, for short, the 'IPC', which is now pending investigation. Ext.P2 is the FIR registered in the crime. He has filed this writ petition to quash Ext.P2 FIR and all further proceedings thereof exercising the extraordinary powers of this Court. ## 2. The case of petitioner in brief is thus: Petitioner was running a motor workshop till 2008. A motor vehicle was entrusted to him for repair by the 4[th] respondent. After carrying out the repair, the vehicle was returned to 4[th] respondent. For about one year, there was no complaint. However, later break down of the vehicle was reported and it was brought to the workshop. Forth respondent **W.P.(C).No.3221/2011** **2** did not purchase and handover the spare parts for carrying out the repair, and as such, further repair works could not be done. On a complaint given by 4[th] respondent, the Deputy Superintendent of Police directed petitioner to take the vehicle to the workshop of 5[th] respondent. He was also directed to carry out the engine work. He agreed to do so, but after removal of the engine, he could not carry out that work since 4[th] respondent failed to supply the spare parts. The 4[th] respondent filed a complaint before the 3[rd] respondent that petitioner has committed the offence of cheating and also theft of valuable parts of his motor vehicle. Recording the complaint of 4[th] respondent, Ext.P2 crime was registered against petitioner for offences punishable under Sections 420 and 381 of IPC. He was arrested and on production before the court remanded to custody and, later, enlarged on bail. Ext.P4 is the remand application filed in the case by 3[rd] respondent before the court. The 4[th] respondent is an advocate and he has influenced the 2[nd] and 3[rd] respondents police officers, to register the crime on false allegations to vex and harass him. Petitioner seeks quashing of **W.P.(C).No.3221/2011** **3** Ext.P2 FIR and all further proceedings in the case issuing an appropriate writ/order or direction. 3. Notice given, 4[th] respondent has entered appearance through counsel. I heard learned counsel for petitioner and 4[th] respondent, and also learned Public prosecutor. 4. Referring to the First information statement forming part of Ext.P2 FIR, learned counsel for petitioner contended that it cannot be given any merit or value at all. Statement recorded from 4[th] respondent, which was signed by him, on which, Ext.P2 FIR was registered for the offences imputed, can at best be considered only as a statement recorded under Section 161 of the Code, is the submission of the counsel urging that he had previously given complaint before 2[nd] respondent and on which, both parties have been summoned before him and some directions were given with respect to the repair of the vehicle. So much so, statement taken from the complainant later with his signature is violative of the interdiction placed under sub section **W.P.(C).No.3221/2011** **4** (1) of Section 162 of the Code prohibiting such statement being signed by the maker. The aforesaid circumstance vitiates the registration of Ext.P2 crime, according to the counsel. Then allegations raised in the First Information Statement of 4[th] respondent do not make out any offence of cheating nor of any theft, is the further submission of the counsel. The essential ingredients of cheating are absent in the case set out by the complainant in the F.I. Statement, is the submission of the counsel. Reliance is placed on **Pareed Pillai & Others v. State (1969 KLT 155)** to contend that ingredients of the offence of cheating are absent in the case adverting to the allegations in the complaint to register Ext.P2 FIR. Learned counsel has also relied on some decisions rendered by the Apex Court, namely, **Asmathunnisa v. State of Andhra Pradesh (2011 (2) KLT SN 22 (C.No.30) (SC)), Harshendra Kumar D v. Rebatilata Koley etc. (AIR 2011 SC 1090)** and **Joseph Salvaraj A. v. State of Gujarat & Others (AIR 2011 SC 2258)** to contend that where the allegations in the FIR do not prima facie make out a cognizable offence and the disputes are shown to be of a civil **W.P.(C).No.3221/2011** **5** nature, FIR registered in the crime is liable to be quashed exercising the extraordinary jurisdiction of this Court. At best, the allegations raised in the petition which relate to a motor vehicle handed over for carrying out repairs would give rise to only a civil action if disputes have arisen between the parties over such transaction, and it cannot give rise to any criminal proceedings against the petitioner, is the submission of the counsel. 4. After considering the submissions made by the counsel with reference to the annexures produced and decisions relied to sustain the challenges raised, I find, this is not fit a case where exercise of extraordinary powers of this Court is called for to quash the crime registered under Ext.P2 FIR. There is no merit in the submission that the statement given by the complainant/4[th] respondent, which was signed by him, is hit by sub section (1) of Section 162 of the Code. Previously, a petition was filed before the Dy.S.P. and an **W.P.(C).No.3221/2011** **6** enquiry thereof proceeded does not postulate that the 4[th] respondent cannot give a complaint at a later stage. If such complaint disclosed of any cognizable offence, no doubt, a crime has to be registered thereof. From the allegations raised in the case after an enquiry by the Dy.S.P. the vehicle was produced in the workshop of 5[th] respondent by the petitioner. It is alleged that he had removed valuable parts of that vehicle when it was produced before the workshop of the 5[th] respondent. Previously, enquiry was conducted by the Dy.S.P is no ground why a crime cannot be registered on a subsequent cause of action, provided, essential ingredients of the penal offences thereof are made out. Challenge over the F.I. Statement forming part of Ext.P2 FIR, for the reason it was signed contending that it was a statement recorded during investigation of a crime is meritless. Then the only question is whether the F.I. Statement given by 4[th] respondent disclose of any cognizable offence. To avoid any prejudice or injury being caused to the parties, I refrain from adverting to **W.P.(C).No.3221/2011** **7** the allegations in detail. Whatever be the settlement effected through the intervention of the 2[nd] respondent, what transpired later as per the allegations set out in the F.I. Statement, prima facie, disclose that there was deceiving of and later loss of valuable property of the 4[th] respondent. The decision relied by the counsel in **Pareed Pillai's case,** cited supra, has no application to the facts of the present case. To constitute the offence of cheating, what is required at first is deception, which is dishonest concealment of facts and, then, as a result of such deception, the person deceived is induced to do any of the acts specified in Section 415 of the IPC. Aggravated form of cheating is covered by Section 420 of the IPC, in which, by the cheating, the person cheated is induced to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, which is capable of being converted into a valuable security. Pursuant to intervention of 2[nd] respondent, the vehicle was handed over to 5[th] **W.P.(C).No.3221/2011** **8** respondent by the petitioner and when complainant enquired at the workshop later he found that the vehicle was produced before that workshop after removing its valuable parts, is his case. So, in the given facts of the case, the circumstances under which the vehicle was handed over to the workshop of 5[th] respondent have necessarily to be looked into. Whether there was deception and inducement of the complainant to do any act constituting the offence of cheating, that is, no doubt, a matter for evidence. The decisions cited by the counsel over the exercise of extraordinary power or inherent powers of this Court to quash the criminal proceedings have no application to the present case where a case has been prima facie made out to proceed against the petitioner on the allegations set out in the statement forming part of Ext.P2 FIR for the offence under Section 420 of IPC. The other offence under Section 381 of the IPC, which has application where property of a master was stolen by clerk or servant put in possession thereof, it may not be applicable, but, still whether an offence **W.P.(C).No.3221/2011** **9** of theft would lie on the allegations raised is a different matter to be considered in investigation. At any rate, it cannot be stated that the allegations set out in the statement given by the complainant forming part of Ext.P2 FIR does not disclose of cognizable offence for registration of a crime and its investigation by police. When that be so, exercise of extraordinary powers of this Court canvassed of to quash Ext.P2 FIR and further proceedings cannot be resorted to. 5. I make it clear that the observations made above shall not have any bearing or reflection over the investigation or trial, since they have been made only for the purpose of considering the challenges raised against Ext.P2 FIR. I also make it clear that petitioner is at liberty to impeach report, if any, filed under Section 173 (2) of the Code, after investigation of the crime, if so advised, and provided he has sustainable grounds to do so. **W.P.(C).No.3221/2011** **10** Subject to the above observations, the writ petition is dismissed. **S.S.SATHEESACHANDRAN JUDGE** prp