Hairunnissa and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.MC.No. 3025 of 2006() ------------------------CC.411/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONERS: --------------- 1. HAIRUNNISSA, W/O.P.B.IQBAL, 7/736, JEW TOWN, MATTANCHERRY MURI, MATTANCHERRY VILLAGE, KOCHI. 2. IHSAN, S/O.P.B.IQBAL, 7/736, JEW TOWN, MATTANCHERRY, KOCHI. 3. NASRIN, D/O.P.B.IQBAL, AGED 21 YEARS, 7/736, JEW TOWN, MATTANCHERRY. 4. B.H.BAVA, S/O.HAMSA, - 7/774, CHAKKAMADAM, KOCHI. BY ADV. SRI.K.J.THOMAS STANLEY SRI.V.J.CHANDY RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, THALAMSSERY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.RIYAS, S/O.MOIDEEN HAJI, AGED 25, SEE FOODS MERCHANT, CHETTAMKUNNU, VADIKKAKOM DESOM, THALASSERY AMSOM, THALASSERY TALUK. ADV. SRI.LAL GEORGE FOR R.2 SRI.ANIMON A. JOHN FOR R.2 PUBLIC PROSECUTORSRI.MUHAMMED PUZHAKKARA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.M.C.No.3025 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of December, 2008 ## **O R D E R** Petitioners, who had been charge sheeted by the Thalassery Police for the offences punishable under Sections 406, 417 and 420 read with Section 34 I.P.C pursuant to a complaint lodged by Respondent No.1 herein, have preferred this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against them. 2. The relevant facts may be briefly noticed. 3. Respondent No.2 (hereinafter referred to as the complainant) had filed a private complaint before the Judicial Magistrate of First Class, Thalassery against petitioners herein alleging commission of the above offences. The complaint was forwarded by the learned Magistrate to the police for investigation under Section 156(3) of the Code. The police registered a crime and completed the investigation and laid charge sheet which is now stated to be pending as C.C.No.411/2005 on the file of the Judicial Magistrate of First Class, Thalassery. 4. In the complaint, a copy of which is on record as Annexure-2, the complainant stated that he was engaged in the business of supply of Sea Food to exporters as well as in the local market since last three years. But, according to the complainant, his father was in the same business for the last 2 Crl.M.C.No.3025/06 33 years. His father and Mr. Iqbal, the Managing Partner of M/s. Diamond Sea Products had been maintaining very good business relation ship for several years. Therefore, when the complainant started his own business, he had decided to supply Sea Foods to Mr. Iqbal. 5. The specific case of the complainant in Annexure-2 is that he started to supply Sea Foods to Mr.Iqbal from March 23, 2004 and that the complainant had business transaction with Mr. Iqbal for a total sum of Rs.20,23,521/=. It is admitted by the complainant that Mr.Iqbal had paid a sum of Rs.11,34,877/= towards the purchases made by him from the complainant. Thus, there remained a balance of Rs.8,88,684/= payable by Mr. Iqbal to the complainant. 6. In Annexure-2, the complainant further alleged that on May 21,2004 the complainant, his father and some others had visited Mr. Iqbal at Mattahcherry, Kochi and held a discussion with him about the balance payment. According to the complainant, an agreement was drawn up on that day between the complainant and Mr. Iqbal by which it was agreed by the latter that the entire balance of Rs.8,88,684/= would be paid to the complainant on or before June 20, 2004. 7. The complainant further alleged in the complaint that on June 13, Mr. Iqbal telephoned him at his residence in Thalassery and informed that he had handed over a sum of Rs.5 lakhs to Mr. Bava (petitioner No.4/accused No.4) to be delivered to the complainant towards the outstanding liability. 3 Crl.M.C.No.3025/06 But, on the next day, viz. June 14, 2004, Sri. Bava allegedly made a telephone call to the father of the complainant and informed him that he would not be in a position to come to Cochin with the money since Sri. Iqbal who had suffered a heart attack early in the morning on that day, had passed away in the evening. Sri. Bava allegedly told the father of the complainant that the sum of Rs.5 lakhs entrusted to him by Mr. Iqbal had been returned to Mrs. Iqbal. The complainant further alleged that he had attended the funeral of Mr.Iqbal at Mattancheri and mentioned about the liability to some of the relatives. But he was advised that it may not be proper to talk about it at that stage. Therefore, the complainant along with one Beeran went to the residence of Mr.Iqbal at Mattancherry on June 23, 2004 and met all the four accused personally and demanded money. But according to the complainant, the accused denied their liability. Though the complainant issued lawyer notice to the accused, they took up the stand that there was no liability at all. It was in the above circumstances that Annexure-2 complaint was filed alleging commission of offences punishable under Sections 407,417 and 420 read with Section 34 I.P.C. 8. It is contended by the learned counsel for the petitioners that the charge laid by the police against the petitioner is totally unsustainable since according to the learned counsel no offence had been made out going by the averments and allegations contained in the complaint. It is 4 ## Crl.M.C.No.3025/06 pointed out by the learned counsel that even assuming the entire allegations in the complaint are taken as true on their face value, no offence under Sections 406,417 and 420 with the aid of Section 34 I.P.C would be attracted. The contention of the petitioners is that the liability (even assuming such a liability existed) which is now attempted to be fastened on the petitioners is purely a civil liability. None of the ingredients of the alleged offences had been made out, it is contended. In this context, learned counsel has invited my attention to a decision of the Apex Court in **Velji Raghavji Patel v. The State of Maharashtra** (AIR 1965 SC1433). 9. Per contra, it is contended by the learned counsel for the complainant that the very fact that the police had charge sheeted the petitioners after completing the investigation, will show that a prima facie case had been made out against the petitioners. He also submits that this Court must be slow and wary while exercising its powers under Section 482 of the Code to quash the proceedings pending before the trial court even before the trial has commenced. 10. Learned counsel on either side have taken me through the complaint extensively. It is pertinent to note that the specific allegation of the complainant in Annexure-2 complaint is that Mr. Iqbal had made purchase of sea foods between March 23, 2004 and April 22, 2004 for a total sum of Rs.20,23,561/= out of which admittedly, he had paid a sum of Rs.11,34,877/=. Thus according to the complainant, Mr. Iqbal 5 ## Crl.M.C.No.3025/06 owed a sum of Rs.8,88,684/= in connection with the above business transaction. It is further alleged by the complainant that on May 21, 2004, Sri. Iqbal had entered into a written agreement with him undertaking to pay the above sum of Rs.8,88684 on June 20, 2004. According to the complainant on the previous day of his death (13.6.2004) Sri. Iqbal had allegedly telephoned the complainant and informed him that he had entrusted a sum of Rs.5 lakhs to Sri. Bava (accused No.4/petitioner No.4) who is also stated to be a partner of the firm to be delivered to the complainant. But, the complainant would allege that on June 14, 2004 in the evening, accused No.4 had telephoned the complainant's father and informed him that he would not be in a position to come to Mattancheri with the money since Sri. Iqbal had passed away on that day due to heart attack. Accused No.4 further informed the complainant's father that he had returned the sum of Rs.5 lakhs to Mrs. Iqbal. 11. The case of the complainant takes a turn here. He alleges that the four accused had committed the offenes alleged against them not only because of their refusal to part with the money of Rs. 5 lakhs but also since they had failed to honour the commitment undertaken by Sri. Iqbal in the written agreement. But in the last page of the complaint, the specific case of the complainant is that the accused being partners of the firm had by their subsequent stand and conduct in refusing to honour the commitment in the written 6 Crl.M.C.No.3025/06 agreement, had deliberately cheated the complainant by refusing to pay the sum of Rs.8,88,684. The same allegation is made in Para 8 of the complainant also. But in the same para, it is alleged by the complainant that all the accused had in furtherance of their conspiracy, cheated the complainant by refusing to deliver the sum of Rs.5 lakhs entrusted by Sri.Iqbal to accused No.4. 12. Having carefully gone through the averments in Annexure-II complaint, I am unable to agree with learned counsel for the complainant that the offences punishable under Sections 407, 417 and 420 read with Section 34 would be attracted on the face of the allegations made in the complaint. The case of the complainant is that petitioners had also undertaken to pay off the liability incurred by Mr.Iqbal and that on behalf of the firm. Even assuming that the petitioners by their conduct or agreement had undertaken to discharge the liability of Mr.Iqbal, either in their capacity as partners or petitioners 1 to 3 (his wife and children) in their capacity as his legal heirs, there is no denying the fact that the liability that has been projected in the complaint is nothing but a civil liability. But the complainant has attempted to bring in an element of criminal liability contending that Mr. Iqbal on the previous day of his death had informed him that he had handed over accused No.4 a sum of Rs. 5 lakhs to be delivered to the complainant. But, according to the complainant, accused No.4 had allegedly returned the money 7 Crl.M.C.No.3025/06 to Mrs. Iqbal (Petitioner No.1). Even assuming that the above contention is true and believable, it cannot be said by any stretch of imagination that all the four accused had committed the offences with which they are now charged. 13. Learned counsel for the complainant while inviting my attention to two decisions of their Lordships of the Supreme Court in **State of M.P. v. Awadh Kishore Gupta & others** ( 2004(1) SCC 691) and in **Suresh Gupta v. N.C.T of Delhi** (2004(3) KLT 14 (SC) contends that this Court may not be justified in quashing the above proceedings pending against the petitioners by invoking the inherent powers under Section 482 of the Code. 14. It is beyond controversy that this Court should be very slow and circumspect to quash the proceedings pending before the trial court even before the trial has commenced. This Court can interfere, as has been held in a catena of decisions, only if the allegations made in the complaint or in the First Information Report (even if they are taken on their face value and accepted in toto), do not make out a prima facie case against the accused. Yet again the proceedings could be quashed if the allegations in the complaint and the other materials available on record do not disclose a cognizable offence. I do not propose to elaborate further on this aspect because the legal position is well settled. 15. Having carefully perused the entire allegations in the complaint, I have no hesitation to hold that the complaint does 8 Crl.M.C.No.3025/06 not disclose any of the offences alleged therein. In my view, if the petitioners are directed to face trial on the charge that has now been laid by the police on the strength Annexure-2 complaint, it will result in manifest injustice and abuse of judicial process. 16. Therefore, I am satisfied that the proceedings pending against the petitioners in C.C.No.411/05 on the file of the Judicial Magistrate of First Class, Thalassery are liable to be quashed. I do so. The Crl.M.C is allowed. **(A.K.BASHEER, JUDGE)** cl