In the High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945`** ``` CRL.MCNO.2112OF2022 ``` ## **`CC 960/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM CRL.M.P NO.749/2021 BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, MALAPPURAM`** ## **`PETITIONERS/ACCUSED NOS.2 TO 6:`** ``` 1HEALTHIUMMEDTECHLTD(FORMERLYKNOWNAS:HEALTHIUM MEDTECHPRIVATELIMITED(REP.BYITSCHIEFEXECUTIVE OFFICER&MANAGINGDIRECTOR,ANISHBAFNA)) 472/13THCROSS,4THPHASE,PEENYA,INDUSTRIALAREA, - BANGALORE,KARNATAKA,PIN560058 2ANISHBAFNA AGED52YEARS THECHIEFEXECUTIVEOFFICER&MANAGINGDIRECTOR, HEALTHIUMMEDTECHLTD.,472/13THCROSS,4THPHASE, PEENYA,INDUSTRIALAREA,BANGALORE,KARNATAKA, - PIN560058 3BINU.J AGED49YEARS GENERALMANAGER(DOMESTICSALES),HEALTHIUMMEDTECH LTD.,472/13THCROSS,4THPHASE,PEENYA,INDUSTRIAL - AREA,BANGALORE,KARNATAKA,PIN560058 4AMITTANDON AGED44YEARS GENERALMANAGER(ARTHROSCOPY),HEALTHIUMMEDTECHLTD., 472/13THCROSS,4THPHASE,PEENYA,INDUSTRIALAREA, - BANGALORE,KARNATAKA,PIN560058 5PANKAJKUMARTHAKRAL AGED49YEARS VICEPRESIDENT(ADVANCEDSURGERY),HEALTHIUMMEDTECH LTD.,472/13THCROSS,4THPHASE,PEENYA,INDUSTRIAL - AREA,BANGALORE,KARNATAKA,PIN560058 BYADVS. JACOBP.ALEX ``` Crl.M.C No.2112 of 2022 2 ``` JOSEPHP.ALEX MANUSANKARP. AMALAMIRALI ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA, REPRESENTEDBYTHEPUBLICPROSECUTOR,HIGHCOURTOF - KERALA.,PIN682031 ``` ``` 2PROPRIETOR,M/SHOSPICARE,SALAMBUILDING,TIRURROAD, EDARIKODE,KOTTAKAL,MALAPPURAMDISTRICT.REPRESENTED BYTHEPOWEROFATTORNEYHOLDER,A.OKRISHNAN,AGED54 YEARS, SREEPADAMHOUSE,PARAMBATHEERICOMPOUND,DEVATHIYAL, - THENJIPALAMP.O,MALAPPURAMDISTRICT,PIN673636 ``` ``` BYADVBabuCherukara ``` ``` SRI.VIPINNARAYAN,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON04.08.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` Crl.M.C No.2112 of 2022 3 ## **ORDER** The petitioners herein are the accused Nos.2 to 6 in C.C No.960 of 2021 on the file of the Judicial Magistrate of the First Class, Malappuram. The aforesaid case has been registered on the strength of a complaint lodged by the 2[nd] respondent before the learned Magistrate. The offence alleged against the petitioners herein are under Sections 120B, 403, 405, 406, 408, 415, 417, 418, 420 r/w Section 34 IPC. From the impugned order it appears that the learned Magistrate considered the statement of the party respondent and also that of two witnesses and took cognizance. 2. From the complaint lodged before the learned Magistrate as well as materials placed before this Court, the facts disclose that the 1[st] accused in the aforesaid Crime, a certain Ajith P Nair was a relative of the de facto complainant, Sri.A.O Krishnan, who is the Proprietor of M/s Hospicare Medical Equipments dealership situated at Malappuram. According to the complainant, the 1[st] accused joined as an employee in a company run by the de facto complainant. As his performance was found to be good, an agreement was entered into, and he was appointed as a permanent employee. According to the complainant, the 1[st] accused Crl.M.C No.2112 of 2022 4 established a personal relationship with many of the clients of the complainant and violated the terms of the understanding between them. It is also alleged that the 1[st] accused misappropriated a huge sum of money from the complainant. According to the complainant, the 1st accused established a business dealing with surgical equipment and it is alleged that the petitioners herein, who are the principal officers and directors of a Global Medical Devices Company, supplied goods to the 1st accused and thereby caused wrongful loss to the complainant. 3. The learned counsel for the petitioners submitted that the 1[st] petitioner herein is a Global Medical Devices Committee having its registered office at Bangalore. Other petitioners are the Chief Executive Officer and Principal officers of the company. According to the learned counsel, the company supplies medical devices to dealers and retailers all over the country and abroad. The learned counsel submits that going by the allegations in the complaint as well as the statement of the complainant before the learned Magistrate, the only allegation against the petitioners is that they had supplied devices to the 1st accused when he commenced his own company. It is submitted that the petitioners have not entered into any agreement or understanding with the complainant that medical devices dealt with by the petitioners will be exclusively Crl.M.C No.2112 of 2022 5 supplied to the complainant and none else. In that view of the matter, the petitioners cannot be roped in, in the dispute between the complainant and the 1st accused. It is submitted that even if the allegations in the complaint are accepted as true, no offense would be made out against the petitioners. 4. The learned counsel for the de facto complainant has opposed the submissions. It is submitted that the 1st accused acted against the understanding entered into with the complainant and the petitioners herein, by supplying medical devices, have assisted him. 5. I have considered the submissions advanced. 6. I find that the allegations in the complaint are all centered against the 1st accused. The only allegation against the petitioners is that they supplied medical devices to the 1st accused when he commenced his new business. The party respondent has not substantiated that the petitioners are barred by any agreement or by any law from supplying goods to the party respondent. At any rate, even if such an agreement was there, the terms can only be enforced in a Civil Court. If that be the case, no offense would be attracted against the petitioners. 7. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its Crl.M.C No.2112 of 2022 6 power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **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 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 > 1 [1992 Supp (1) SCC 335 Crl.M.C No.2112 of 2022 7 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 accused. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, 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. Crl.M.C No.2112 of 2022 8 8. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the complaint and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioners. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioners. Resultantly, this petition will stand allowed. All further proceedings against the petitioners in C.C No.960 of 2021 on the files of the Judicial First Class Magistrate, Malappuram are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ``` IAP ``` Crl.M.C No.2112 of 2022 9 ## **`APPENDIX OF CRL.MC 2112/2022`** ``` PETITIONERS’ANNEXURES: AnnexureA1CERTIFIEDCOPYOFTHECOMPLAINTFILEDBYTHE 2NDRESPONDENTHEREINASCRL.M.P.749/2021 BEFORETHECOURTOFJUDICIALFIRST-CLASS MAGISTRATE,MALAPPURAM AnnexureA2TRUECOPYOFTHESTATEMENTDATED27.08.2021 OFSAJITHARECORDEDINCRL.M.P.749/2021 BEFORETHECOURTOFJUDICIALFIRST-CLASS MAGISTRATE,MALAPPURAM AnnexureA2(a)TRUECOPYOFTHESTATEMENT(UNDATED)OF SAYOOJRECORDEDINCRL.M.P.749/2021BEFORE THECOURTOFJUDICIALFIRST-CLASS MAGISTRATE,MALAPPURAM AnnexureA3CERTIFIEDCOPYOFTHEORDERDATED21.12.2021 INCRL.M.P.749/2021BEFORETHECOURTOF JUDICIALFIRST-CLASSMAGISTRATE,MALAPPURAM AnnexureA4TRUECOPYOFTHELEGALNOTICEDATED 26.02.2021ISSUEDTOTHEMANAGER,HEALTHIUM MEDTECHPRIVATELIMITEDCOMPANY ```