Kevin Sekhar @ Sukash v. Jiju and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 12TH DAY OF MARCH 2014/21ST PHALGUNA, 1935** ## **Crl.MC.No. 1345 of 2012** **---------------------------** ## **CRIME NO. 656/2012 OF KALAMASSERY POLICE STATION , ERNAKULAM** **....** ## **PETITIONER(S)/ACCUSED:** **------------------------------------------** **KEVIN SEKHAR @ SUKASH, S/O.CHANDRA SHEKHAR, CHIEF EXECUTIVE OFFICER, KEVIN SHEKHAR GROUP, NO.14, A.K.HOUSE, PALI HILL, BANDRA, MUMBAI.** **BY ADVS.SRI.B.S.SWATHI KUMAR SMT.P.V.SOBHANA** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **--------------------------------------------------------------------------** **1. JIJU, PARTNER, EMMANUVAL SILKS, EDAPPILLY, KOCHI, RESIDING AT THEKKUMPURAM HOUSE, UNNAMPETTA, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR - 691 585.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.B.RAMAN PILLAI** **SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR** **SRI.MANU TOM R2 BY PUBLIC PROSECUTOR SRI.JITHESH.R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.1345/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A TRUE COPY OF THE FIR IN CRIME NO.656/2012 OF KALAMASSERY POLICE STATION DATED 8/4/2012. ANNEXURE B TRUE COPY OF THE COMPLAINT FILED BY THE IST RESPONDENT BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM DATED 7/4/2012. ANNEXURE C TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND THE IST RESPONDENT DATED 29/2/2012. ANNEXURE D TRUE COPY OF THE LAWYERS NOTICE DATED 6/4/2012 TO THE IST RESPONDENT. ANNEXURE E TRUE COPY OF IST PAGE OF THE AGREEMENT BETWEEN EMMANUVAL SILKS AND KATRINA KAIF. ANNEXURE F TRUE COPY OF THE PROFORMA INVOICE DATED 12/3/2012.** **RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.D. RAJAN, J.** ======================== Crl.M.C.No.1345 of 2012 -------------------------------------------Dated this the 12[th] day of March, 2014 ## **ORDER** This petition is filed under Section 482 Cr.PC to quash Annexure A FIR in Crime No.656 of 2012 of Kalamassery Police Station and pending before Judicial First Class Magistrate Court-II, Aluva under Section 420 IPC, by invoking inherent jurisdiction. The first respondent in this case filed a petition to the Inspector General of Police, Ernakulam which was forwarded to the Sub Inspector of Police, Kalamassery for investigation and on the basis of that, Sub Inspector of Police, Kalamassery registered Annexure A. The first respondent is a partnership firm doing textile business and petitioner agreed that he will arrange the presence of the Bollywood actress Katrina Kaif for the inauguration of their renovated show room of Emmanul Silks at Thrissur and as per the agreement, the petitioner received 20 lakhs towards₹ Crl.M.C.No.1345/12 -2- advance. When the first respondent contacted her office at Mumbai, it was revealed that such an arrangement was not made by the petitioner and he has not contacted her office with the proposed programme. In the circumstance, the first respondent filed a petition before the Inspector General of Police. The petitioner approached this Court to invoke inherent jurisdiction to quash Annexure A on the ground that prima facie case is not made out against him and if the trial is conducted, it will be a mere abuse of process of Court. 2. The learned counsel appearing for the petitioner contended that the transaction with the first respondent is only a civil nature and will not come within Section 420 of IPC, and essential ingredients to attract Section 420 IPC is not found in the alleged petition. In the inauguration of Kottayam show room, film star Allu Arjun had participated and petitioner had arranged his presence. He admitted that there was an agreement to conduct fashion show in Crl.M.C.No.1345/12 -3- the first respondent's firm and he promptly performed that fashion show and he has not paid any amount as agreed. In the meantime, the first respondent directly contacted with the addressee firm and executed Annexure E, and therefore, he could not contact Katrina Kaif as agreed. The petitioner relied on the decisions reported in Jose V.Y and Another v. State of Gujarat and Another **(2009 KHC 72);** Dalip Kaur and Others v.Jagnar Singh and Another **[2009 (3) KHC 554 (SC)]** and Chhajuram Agarwal v. State of Bihar and Another ( **2008 KHC 5418)** . 3. The learned Public Prosecutor strongly opposed the argument and contended that the petitioner is involved in several other cheating cases. Prima facie case is made out against him. The investigating agency obtained some important documents during the investigation. When prima facie case is made out against the petitioner it is not fair to interfere at this stage. Crl.M.C.No.1345/12 -4- 4. Inherent jurisdiction under Section 482 Cr.PC can be invoked for the limited grounds mentioned therein. That is to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 5. Apex Court in State of Haryana v. Bhajanlal, **[1992 SCC (Crl.) 426],** expressed the condition for invoking jurisdiction under Section 482 Cr.PC. The dictum reads as follows:- “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Crl.M.C.No.1345/12 -5- Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only noncognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155 (2). (5) Where the allegations 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 Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, 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 accuse with a view to spite him due to private and personal vengeance.” ## 6. The first respondent's allegation in the trial court Crl.M.C.No.1345/12 -6- was that the petitioner received 20 lakhs and cheated₹ him, which is mentioned in annexure A FIR. Annexure B is the complaint. Annexure C is an agreement between the petitioner and the first respondent firm with regard to fashion show for 30 days. It is submitted in Annexure C that after discussion, both parties agreed upon the rate of the fashion show at the show room and agreed to pay the payment after every ten days. When there was no payment, Annexure D notice was issued to the first respondent. Annexure E is an endorsement agreement between Emmanual Silks and Matrix India Entertainment Consultants Private Limited. The rate of Katrina Kaif was also mentioned in Annexure F. Analysing the facts, it is clear that prima facie case is made out. According to the first respondent, he paid 20 lakhs₹ to the petitioner as per their agreement. In order to attract Section 420 IPC, the de facto complainant has to prove that whoever by deceiving any person fraudulently Crl.M.C.No.1345/12 -7- 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 induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes damage to the person in body, mind or reputation or property is said to commit cheat. A dishonest concealment of fact is also a deception within the meaning of this Section. The facts and circumstances show that prima facie case is made out against the petitioner. When prima facie case is made out, I am of the view that this is not a fit case to invoke inherent jurisdiction under Section 482 Cr.PC. There is no merit in this petition and it is dismissed. Sd/- kvr/ /True copy/ P.S. to Judge