Gopi and Raghunath v. State of Kerala and Gopalakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941 CRL.MC.NO.2425 OF 2015** **AGAINST CC NO.932/2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERRY CRIME NO.802/2012 OF THE PALAKKAD TOWN SOUTH POLICE STATION** ## **PETITIONER/ACCUSED NOS.1 AND 2:** |**1**|**GOPI, AGED 48 YEARS,**| |---|---| ||**S/O RAMAN NAIR, CHAKKUNNATH VEETTIL,**| ||**VENGANELLUR, THALAPPILLY, THRISSUR.**| |**2**|**RAGHUNATH, AGED 51 YEARS,**| ||**S/O MUTHUSWAMY, MUTHUNILAYAM,**| ||**VENGANELLUR DESOM, THRISSUR DISTRICT.**| ||**BY ADV. SMT.P.R.REENA**| ## **RESPONDENT/STATE:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031.**| ||**(CRIME NO.246/2012 OF PAZHAYANNOOR POLICE STATION,**| ||**THRISSUR DISTRICT).**| |**2**|**GOPALAKRISHNAN, AGED 56 YEARS,**| ||**S/O RAMAN NAIR, PALLIKKARA VEEDU,**| ||**VENGANELLOOR VILLAGE,VENGANELLOOR DESOM,**| ||**CHELAKKARA, THRISSUR DISTRICT-680586.**| ||**(IS IMPLEADED AS ADDL.R2 AS PER ORDER DTD 11-09-2015**| ||**IN CRL.MA 7943/2015.)**| **BY ADVS. SMT.P.G.BABITHA SRI.BINOY VASUDEVAN** ## **OTHER PRESENT:** **SRI M.S. BREEZ, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC.NO.2425 OF 2015** **2** ## **O R D E R** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused in C.C. No.932 of 2013 on the file of the Judicial First Class Magistrate Court, Wadakkancherry. In the aforesaid case, they have been summoned to answer a charge under Sections 201, 406, 419, 420, 465 r/w. Section 34 of the Indian Penal Code. The additional 2[nd] respondent is the de facto complainant. 3. From the final report, it appears that the allegation is that the 1[st] petitioner herein is the Managing Director of a Company by name ‘Gopika Traders Pvt. Ltd’. The de facto complainant is the owner of a property having an extent of 77 cents. An agreement was entered into, as per which, the petitioners have agreed to purchase the property at the rate of Rs.57,500/- (Rupees Fifty Seven Thousand Five Hundred only) per cent and a sum of Rs.10,00,000/(Rupees Ten Lakhs only) was paid by way of advance. It was also agreed between the parties that the balance amount would be paid and the sale deed would be executed and registered within a period of six months from the date of the agreement. It is further alleged that towards part of sale consideration, the 1[st] petitioner handed over a cheque dated 10.10.2011 drawn at HDFC Bank, Chandera Nagar Branch for a sum of Rs.5,00,000/- (Rupees Five lakhs only). **CRL.MC.NO.2425 OF 2015** **3** The cheque was presented, but the same was dishonoured. As instructed by the 1[st] petitioner, the dishonored cheque was handed over to the 2[nd] petitioner, who is the Manager of the company, on the understanding that the payment of the amount covered under the cheque would be ensured in some other manner. Thereafter, the 2[nd] petitioner, impersonating as the de facto complainant, caused the issuance of a statutory notice to one A.N.Gopakumar, on whose account the cheque was allegedly drawn. By the acts of the petitioners, wrongful loss was caused to the de facto complainant is the essence of the allegation. 4. Heard Smt. P.R.Reena, the learned counsel appearing for the petitioners, and Sri.Benoy Vasudevan, the learned counsel appearing for the 2[nd] respondent, and the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the true facts have been suppressed by the 2[nd] respondent while filing the criminal complaint. It is further submitted that when the 2[nd] respondent did not act in terms of Annexure-IV agreement dated 02.11.2011, the petitioner caused the issuance of Annexure-V legal notice on 12.04.2012 to which, Annexure-VI reply notice was issued on 19.04.2012. According to the learned counsel, in AnnexureVI, the 2[nd] respondent has no case that a cheque for a sum of Rs.5 lakhs was handed over by the 1[st] petitioner. He would further urge that the petitioners herein filed O.S.No.945 of 2012 before the Court of the Additional Sub Judge, **CRL.MC.NO.2425 OF 2015** **4** Thrissur seeking a decree of specific performance or in the alternative, for return of advance money and damages and the civil court after meticulously analysing the evidence adduced by both parties, decreed the suit and the 2[nd] respondent was ordered to return a sum of Rs.10 lakhs paid by way of advance together with interest. In the judgment, the civil court had occasion to observe that the 2[nd] respondent had no case that a sum of Rs.5 lakhs was handed over to the petitioners by the 2[nd] respondent at any point of time. This would destroy the very edifice of the prosecution case, contends the learned counsel. He would further contend that Sri.A.N.Gopakumar, who allegedly had issued the cheque drawn at the HDFC Bank, had approached the Palakkad South Police Station and got a crime registered as Crime No.802 of 2012. The 2[nd] accused in the said crime was the 2[nd] respondent herein. The said case was tried by the Chief Judicial Magistrate, Palakkad and by Annexure-III judgment dated 16.06.2014, the accused were found not guilty of the offence. According to the learned counsel, the continuance of proceedings against the petitioners in the light of the above is clearly an abuse of process. 6. The learned counsel appearing for the 2[nd] respondent, on the other hand, vehemently opposed the prayer and it is submitted that the materials in the final report would reveal that the petitioners herein had, in fact, committed the offence alleged. **CRL.MC.NO.2425 OF 2015 5** 7. Heard the learned Public Prosecutor and I have perused the records. 8. The specific allegation against the petitioners is that towards part of sale consideration, the 1[st] petitioner had issued a cheque for a sum of Rs.5 lakhs to the 2[nd] respondent. It is the case of the 2[nd] respondent that the cheque was actually drawn on an account maintained by one A.N.Gopakumar. When the cheque was dishonoured, the 2[nd] respondent is alleged to have handed over the same to the 2[nd] petitioner as requested by the 1[st] petitioner to effect payment in some other manner. Thereafter, the 2[nd] petitioner is alleged to have issued a statutory notice to Sri.A.N.Gopakumar, impersonating as the 2[nd] respondent. From the undisputed records, it is evident that a suit was instituted by the 1[st] petitioner herein before the Sub Court, Thrissur arraying the 2[nd] respondent as a defendant. The case was hotly contested as is evident from Annexure-VIII judgment. The civil court had occasion to hold that the contention of the 2[nd] respondent that the cheque was handed over to him towards part of sale consideration was false. I also find that in the reply notice issued by the 2[nd] respondent to the 1[st] petitioner on 19.04.2012, he had no case that a cheque for Rs.5 lakhs was handed over to him. The agreement was executed on 02.11.2011 and the FIR was registered on 01.06.2012. When the 2[nd] respondent had no case even on 19.04.2012, when reply notice was issued by him as aforesaid, he could not have raised such an allegation on 01.06.2012 to set the criminal law in motion. Furthermore, the civil court had occasion to consider the contentions **CRL.MC.NO.2425 OF 2015 6** advanced by both sides and ultimately, the 1[st] petitioner was held entitled to a decree for a refund of Rs. 10 lakhs with interest. ## 9. In **Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque** [2005(1) SCC 122], the Hon’ble Supreme Court had occasion to lay down the scope of exercise of powers and the categories of cases, wherein this Court will be well justified in exercising its power under Section 482 of the Cr.P.C. to prevent abuse of process of court or to secure the ends of justice. It was observed as follows in paragraph No.8 of the report. **“8.** Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, **CRL.MC.NO.2425 OF 2015** **7** whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. **CRL.MC.NO.2425 OF 2015 8** 10. It was held that when the complaint or the final report does not disclose any offence or is frivolous, vexatious or oppressive, this Court would be well justified in quashing the proceedings in exercise of the inherent powers under Section 482 of the Code. Having considered the case in hand on the touchstone of the aforementioned parameters, I am of the considered view that the institution and continuance of criminal proceedings as against the petitioners herein are clear abuse of process. In the result, this petition stand allowed and all further proceedings as against the petitioners in C.C. No.932 of 2013 on the file of the Judicial First Class Magistrate Court, Wadakkancherry, are hereby quashed. Sd/ **RAJA VIJAYARAGHAVAN V., JUDGE** NS **CRL.MC.NO.2425 OF 2015 9** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES :** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.246/12 WHICH IS NOW PENDING AS CC NO.932/13 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY.** **ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.246/12 WHICH IS NOW PENDING AS CC NO.932/13 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY. ANNEXURE II TRUE COPY OF THE FIR AND COMPLAINT IN CRIME NO.802/2012 OF PALAKKAD TOWN SOUTH POLICE STATION.** - **ANNEXURE III: TRUE COPY OF THE JUDGMENT DATED 6.6.2014 IN CC NO.420/12 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, PALAKKAD.** - **ANNEXURE IV: TRUE COPY OF THE AGREEMENT FOR SALE DATED 02.11.2011.** - **ANNEXURE V: TRUE COPY OF THE NOTICE DATED 12.04.2012 SENT BY THE PETITIONER TO GOPALAKRISHNAN.** - **ANNEXURE VI: TRUE COPY OF THE REPLY SENT TO THE PETITIONER DATED 19.4.2012.** - **ANNEXURE VII: TRUE COPY OF THE FIR IN CR. NO.246/2012 OF CHELAKKARA POLICE STATION ALONG WITH THE COMPLAINT DATED 28.05.2012.** - **ANNEXURE VIII: TRUE COPY OF THE JUDGMENT IN O.S. NO.945 OF 2012 DATED 28.02.2015 OF COURT OF THE ADDITIONAL SUB JUDGE, THRISSUR.** - **ANNEXURE IX: TRUE COPY OF THE DEPOSITION OF PW1 IN C.C. NO420/2012 OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD.** ## **RESPONDENT(S) ANNEXURES :NIL** **/TRUE COPY/** **P.A.TO JUDGE**