Kallur Narayana Shastry @ K.N. Shastry and Lalitha Shastry v. State of Kerala, Rejani Jayaram and K.M. Jayaram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935** ## **Crl.MC.No. 5553 of 2013 (A)** **--------------------------------------[CRIME NO. 821/2013 OF ERNAKULAM TOWN SOUTH POLICE STATION]** **...........** ## **PETITIONERS:** **---------------------** **1. KALLUR NARAYANA SHASTRY @ K.N.SHASTRY, AGED 63 YEARS, S/O.LATE K.V.SHASTRY, RESIDING AT AMRIT RETREAT, VIVEK NAGAR, KOCHI 20 & MANAGING DIRECTOR, NEW ALLIED TOURS & TRAVELS, PANAMPILLY NAGAR, KOCHI-36.** ## **2. MRS. LALITHA SHASTRY, AGED 56 YEARS,** **W/O.K.N.SHASTRY, RESIDING AT AMRIT RETREAT, VIVEK NAGAR, KOCHI 20 & MANAGING DIRECTOR, NEW ALLIED TOURS & TRAVELS, PANAMPILLY NAGAR, KOCHI-36.** **BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE, ADV. SRI.C.A.JOY.** ## **RESPONDENTS:** **-----------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **2. REJANI JAYARAM,** ## **RESIDING AT G-448, PANAMPILLY NAGAR, COCHIN-682 036.** ## **3. K.M. JAYARAM,** **RESIDING AT G-448, PANAMPILLY NAGAR, COCHIN-682 036.** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN, R2 & R3 BY ADVS. SRI.P.B.ASOKAN,** **SRI.P.B.AJOY, SRI.K.G.RAJEESH.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-01-2014, THE COURT ON 24-01-2014 PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.5553/2013-A:** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNX.A1: THE COPY OF THE PALM-LET SHOWING THE EXPENSE FOR JOINING THE TOUR PACKAGE AND BOOKING CHARGES ISSUED FOR AND ON BEHALF OF M/S.TRAFALGAR.** **ANNX.A2: THE TERMS AND CONDITIONS OF THE TOUR PACKAGE ISSUED BY M/S.TRAFALGAR.** **ANNX.A3: THE RECEIPTS SHOWING THE ABOVE PAYMENTS.** **ANNX.A4: A TRUE COPY OF THE TICKET RESERVATION DATED 06-09-2012 FOR MRS.JAYARAM.** **ANNX.A5: A TRUE COPY OF THE LETTER DATED 15-10-2012 SUBMITTED BY MR.K.M.JAYARAM.** **ANNX.A6: A TRUE COPY OF THE LETTER DATED 11-12-2012 SEEKING DETAILS OF THE ACCOUNT.** - **ANNX.A7: A TRUE COPY OF THE ABOVE ACCOUNT STATEMENT DATED NIL.** - **ANNX.A8: THE CERTIFIED COPY OF THE F.I.R FILED IN CR.NO.821/13 OF ERNAKULAM TOWN SOUTH POLICE STATION BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (E.O) ERNAKULAM.** ## **RESPONDENTS' ANNEXURES:** **ANNX.R2.(A): TRUE COPY OF THE HONOURABLE HIGH COURT OF KERALA IN B.A. NO.5446/2013 DTD. 20/11/2013.** - **ANNX.R2.(B): TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF MRS. REJINI JAYARAM (2ND RESPONDENT).** - **ANNX.R2.(C): TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF MR. K.M. JAYARAM (3RD RESPONDENT).** - **ANNX.R2.(D): TRUE COPY OF THE E-MAIL DTD. 19/11/2013 SEND BY THE VISA SECTION OF THE FRENCH CONSULATE TO K.M. JAYARAM (3RD RESPONDENT).** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 5553 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of January, 2014. ## **ORDER** This petition has been filed under Section 482 of the Code of Criminal Procedure seeking to have the FIR in Crime No. 821 of 2013 of Ernakulam Town South Police Station which has been registered for the offences punishable under Section 420 read with Section 34 of Indian Penal Code quashed. 2. The facts absolutely necessary for the disposal of this petition are as follows: The petitioners run a travel agency, New Allied Tours and Travels, which they claimed to be a unit of Cochin Tours and Travels Pvt. Ltd. In the month of July, 2012, the third respondent along with his wife, i.e., the second respondent, approached the petitioners and expressed their desire to avail of the package tour introduced by M/s. Crl.M.C.5553/2013. 2 Trafalgar, an U.K. based travel company to visit U.K., France, Germany, Italy and Switzerland. The petitioners' travel company was to arrange the travel documents for the two passengers. It is claimed by the petitioners that the obligation to provide travel documents was undertaken subject to the availability of U.K. and Schengen visa connected with the tour package. By way of ticket fare and accommodation, the couple had to pay Rs.5,16,007/- and they had joined the tour package commencing from London on 28.9.2012. The relevant document is produced as Annexure A1. 3. It is claimed that on 18.8.2012 Rs.1,39,944/was paid which was utilized for reserving seats for the second and third respondent. As per the terms and conditions of the seat reservation, if for any reason, the ticket holder could not join the programme, the cancellation charges would be deducted and the proposed traveller will not be entitled to refund of the amount. Annexure A2 is the relevant terms and conditions. The petitioners claim that after confirmation of Crl.M.C.5553/2013. 3 seat reservation, the petitioners on different dates paid a total amount of Rs.5,16,007/- to M/s. Trafalgar for the purpose of issuance of confirmation of ticket. They also prepared and handed over the necessary documents to respondents 2 and 3 to enable them to get the necessary visa. After obtaining the U.K. Visa stamped in the passport, with the concurrence of respondents 2 and 3, the petitioners forwarded all the necessary papers for getting Visa for the other countries, namely, France, Germany, Italy and Switzerland known as Schengen visa through a French Consulate at Pondicherry. In paragraph 8 of the petition, the petitioners gave details of different payments made by them to M/s. Trafalgar. The payments made by respondents 2 and 3 on various dates are also shown in paragraph 8 which comes to a total amount of Rs.4,45,000/-. Effecting the payment of Rs.5,16,007/-, M/s.Trafalgar issued tickets for respondents 2 and 3 on 6.9.2012. Annexure A4 is the relevant document. The tour was to commence on 28.9.2012 and would come to an end on Crl.M.C.5553/2013. 4 15.10.2012. Unfortunately the Visa application submitted before the French Consulate at Pondicherry was rejected and the documents were returned and received by the petitioners on 24.9.2012. When the said aspect was brought to the notice of respondents 2 and 3, they wanted that the application for Visa to be submitted through the Italian Consulate at Mumbai. It was so done. There also the visa could not be procured. Thereafter as per Annexure A5 application put up by the third respondent, the relevant documents produced by respondents 2 and 3 were got returned. According to the petitioners, out of Rs.4,45,000/- paid on different dates by respondents 2 and 3, after deducting the expenses for cancellation etc., the balance amount of Rs.85,828/- was refunded to respondents 2 and 3 on 10.12.2012. Annexure A6 is the details of the account maintained by the petitioners. 4. To the surprise of the petitioners, they were summoned to Ernakulam Town South Police Station on the ground that a complaint has been received from respondents Crl.M.C.5553/2013. 5 2 and 3 against them. On the second occasion when they had met the officer concerned, there was pressure from the side of the said officer that the entire amount be returned to respondents 2 and 3 and 50% will have to be given on or before 31.7.2013 at 10 a.m. in the presence of the officer concerned. Anticipating arrest at the hands of the police officer concerned, the petitioners approached this Court by filing B.A. 5446 of 2013. On getting information about the same, FIR was registered against the petitioners for the offence under Section 420 read with Section 34 of Indian Penal Code. 5. The case put forward by the petitioners is that even assuming all the allegations in the complaint to be true, there is no element of cheating at all. There is no question of deceit having been played by the petitioners and they have only appropriated the cancellation charges which are only due to them as per the terms and conditions of the tour package of which respondents 2 and 3 were well aware of. Annexure A6 Crl.M.C.5553/2013. 6 shows the details of the account and appropriation made by the petitioners towards the cancellation charges and that also shows that the balance amount is only Rs.85,828/- which had been admittedly paid to respondents 2 and 3. Even assuming that there is any dispute, it is based on a contract and no criminal offence is involved in the matter. It is at best a civil dispute and the only question is whether the petitioners are entitled to appropriate the amount as claimed by them in Annexure A6. The filing of the complaint and the registration of the crime are clear abuse of the process of the Court and it is only a pressurizing tactics adopted by respondents 2 and 3 with the connivance of the police officers to compel the petitioners to pay the entire amount to respondents 2 and 3 to which they are not entitled to. There is no allegation that the petitioners had diverted the amount paid by respondents 2 and 3 or they had misappropriated the amount for themselves. The issue that actually arises, even assuming if there is any, is what is the cancellation charge to which the petitioners are Crl.M.C.5553/2013. 7 entitled to and the balance amount due to respondents 2 and 3. That is a dispute of civil nature and criminal proceedings are uncalled for and misconceived. On the basis of these conditions, they pray for quashing of the FIR. 6. Respondents 2 and 3 have filed a counter. It is pointed out by them that the petitioners obtained anticipatory bail order from this Court on certain conditions and they have not complied with the said conditions. Ext.R2(a) is the said order. Instead of complying with the order, they have approached this Court by way of the present petition seeking to have the FIR quashed. That by itself is an abuse of the process of court. These respondents do admit that they have paid a sum of Rs.4,45,000/- towards the tour package and according to them, they were given to understand that the petitioners would arrange both U.K. and Europe (Schegen) Visas. It is conceded by the petitioners that they had to directly apply for U.K. Visa. Accordingly they have approached the Visa Facilitation Centre at Kochi and obtained U.K. visa Crl.M.C.5553/2013. 8 which is valid for six months. After obtaining the said visa, necessary documents were handed over to the petitioners so as to enable them to apply for Schegen Visa at the French consulate at Pondicherry. On 14.9.2012 the respondents were informed that their application for visa has been rejected. During September and October, 2012 the respondents complained that they continued to enquire about their application for Visa. The reason for rejection was not communicated to them. They therefore sought return of the passports and refund. On 3.12.2012 when the documents were returned to respondents 2 and 3, they found that the French Consulate rejected the visa application on 11.9.2012 and the Italian Consulate on 27.9.2012. The petitioners have received money from the second respondent after the visa applications were rejected and when it became clear that respondents 2 and 3 could not join the tour package, a sum of Rs.85,828/- was returned to them. On enquiry, they came to know that the French Consulate rejected their application due Crl.M.C.5553/2013. 9 to the fact that their stay in France was shorter than their stay in Italy and they have to apply for Visa before the Italian Consulate. It is also disputed that the third respondent had given any application showing his disinclination to join the tour package due to paucity of time. 7. It is contended that on the basis of the allegations in the complaint, a cognizable offence is made out and if that be so, quashing of the FIR does not arise for consideration. Once it is shown that a cognizable offence is made out, then the police force is entitled to investigate and the court cannot interfere. For the above proposition, learned counsel relied on the decision reported in State of Haryana v. Bhajan Lal (AIR 1992 SC 604). 8. Learned Public Prosecutor supported respondents 2 and 3 and pointed that the investigation is at an infant stage and that may not be aborted by this Court by quashing the FIR. If, after investigation, it is found that no offence is made out, the police shall file a refer report and if it Crl.M.C.5553/2013. 10 is otherwise, then it is still open to the petitioners to approach this Court for having the final report quashed. It is only in exceptional cases, according to the learned Public Prosecutor, an FIR can be quashed preventing investigation into the matter and no such contingency which warrants quashing of the FIR exists in the case on hand. He too prayed for dismissal of the petition. 9. Learned counsel for the petitioners and respondents 2 and 3 and the learned Public Prosecutor were heard. It is true that the petitioners had approached this Court vide B.A. No.5446 of 2013 seeking anticipatory bail which was granted by this Court on 20.11.2013 on certain conditions. One of the conditions was that the petitioners have to deposit Rs.2,00,000/- in a Nationalised Bank in their joint name for a period of two years and produce the FD receipt before the court concerned. 10. The main grievance of respondents 2 and 3 is that after having obtained anticipatory bail on certain Crl.M.C.5553/2013. 11 conditions, the petitioners, instead of complying with those conditions, have chosen to approach this Court with this petition under Section 482 of Cr.P.C. to have the FIR quashed. This, they would say, is a gross abuse of the process of court and also amounts to disobedience of the orders of this Court. 11. Though the argument looks attractive at the first blush, there may not be much substance. The mere fact that the petitioners did not avail of anticipatory bail granted to them by complying with the conditions, does not mean that they are precluded from challenging the registration of the crime on the basis that going by the allegations in the complaint, no cognizable offence is made out. 12. The parameters for quashing the FIR are well settled by a catena of decisions. Reliance was placed on the decision reported in State of Haryana v. Bhajan Lal (AIR 1992 SC 604). Going by that decision, it is very seldom that the court will interfere and quash the FIR. That is done only in exceptional cases. Only when the allegations in the complaint Crl.M.C.5553/2013. 12 do not disclose any cognizable offence, an FIR is quashed. If any cognizable offence is made out, the court is not to enquire into the legality of the registration of the crime or interfere with the investigation as investigation is within the exclusive domain of the police force and it is for them to decide how the matter should be investigated into. Here too, one has to remember that the court can interfere with the investigation only in exceptional circumstances. 13. When one looks at the complaint in the present case, it is clear that the real issue involved is the amount that is to be refunded to respondents 2 and 3. The petitioners would say that they are entitled to cancellation charges and they have returned the amount after appropriating the cancellation charges. It is significant to notice that there is no dispute regarding the fact that the total amount paid to the petitioners by respondents 2 and 3 is Rs.4,45,000/- as is shown in Annexure A7 statement of accounts. The dispute actually is regarding cancellation charges appropriated by the Crl.M.C.5553/2013. 13 petitioners. The respondents raised two contentions. They are, (i) that there was no agreement or contract by which such an appropriation could be made and (ii) even going by the petitioners' case, the application for Shengen Visa had to be made by the petitioners and since no application for Visa was made by the petitioners, the question of appropriating charges for cancellation of Visa does not arise. 14. It must be noticed that there is no case for respondents 2 and 3 that the petitioners have misappropriated any amount or converted any amount which had been paid by them for a particular purpose. Their only grievance is that in the statement of accounts, namely, Annexure A7, the amount which have been appropriated by the petitioners under various heads are not due to them and they cannot appropriate those amounts. 15. The question as to whether the petitioners can claim those amounts or not is purely a civil dispute. One fails to see any element of an offence in the matter. The issue is Crl.M.C.5553/2013. 14 really regarding the appropriation of amount made by the petitioners towards cancellation charges etc. That has to be decided on the basis of the contract and other documents governing the tour package. One fails to see any deceit practiced or any dishonest misappropriation or deprivation of property of respondents 2 and 3. 16. On the facts, going by the allegations in the complaint, it is difficult to come to the conclusion that the offence under Section 420 of I.P.C. is made out. Of course, there is a contention that the third respondent has not filed Annexure A5 at all. That is besides the point. The allegation is that the petitioners have cheated the respondents. Section 415 of I.P.C. deals with the offence of cheating. It reads as follows: “415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or Crl.M.C.5553/2013. 15 omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.” The essential elements to constitute the offence are practice of deception or fraudulent or dishonest inducement causing a person to deliver a property. The complaint has already been referred to. But there is nothing in the complaint to show that there was any deception played by the petitioners nor that they have played fraud on respondents 2 and 3. Nor is there any dishonest inducement to divert the money. The dispute between the parties is confined to the question whether as claimed by the petitioners, they are entitled to appropriate the amount as shown in Annexure A7 statement of accounts, or if they are not entitled to make the said appropriation, they are bound to return the entire amount to respondents 2 and 3. It is essentially a civil dispute and no Crl.M.C.5553/2013. 16 offence is made out on the basis of the allegations in the complaint. In the result, this petition is allowed, Annexure A8 stands quashed and further proceedings against the petitioners shall stand dropped. P. BHAVADASAN, JUDGE sb.