Manikandan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941** ## **WP(C).No.28489 OF 2019(I)** ## **WRIT PETITIONER:** **MANIKANDAN, AGED 43 YEARS S/O VELAYUDHAN 13/454,(7), MANKAVU, NEAR BISMI, PALAKKAD-678 001. PROPRITOR-MS ASSOCIATES, 18/21, FORT CENTRE, FORT MAIDAN, STADIUM BYEPASS ROAD, PALAKKAD-1.** ## **BY ADV. SRI.ARAVIND GHOSH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001** - **2 STATE POLICE CHIEF (DGP), KERALA, POLICE HEADQUARTERS, VAZHUTHACAD, THIRUVANANTHAPURAM-965 010.** - **3 DISTRICT POLICE CHIEF (SP), PALAKKAD, SEKHARIPURAM, OLAVAKKOT.K.O.PALAKKAD-678 001.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2019, THE COURT ON 20.11.2019 DELIVERED THE FOLLOWING:** **WP(C).No.28489 OF 2019(I)** **2** ## **“C.R”** ## **R. NARAYANA PISHARADI, J** ## **----------** ----------------------------------- ## **W.P(C) No. 28489 of 2019** --------------------------------------------- Dated this the 20[th] day of November, 2019 ## **JUDGMENT** The petitioner is a person conducting business under the name and style 'MS Associates'. He filed Ext.P1 complaint at the police station, against two persons by name Sudha and Vinod, alleging that they cheated him. On the basis of the aforesaid complaint, Crime No. 384/2019 of Town South Police Station, Palakkad was registered against Sudha and Vinod under Section 420 read with 34 IPC. 2. The crux of the allegations in Ext.P1 complaint and also the subsequent statement given by the petitioner to the police can be stated as follows: Sudha is a sales tax accountant. She used to file the GST returns in respect of the business conducted by the petitioner. She conducted transactions with several persons and companies using the invoice bill which contained the GST registration number of the establishment of the petitioner. However, she did not remit the tax due in respect of such transactions. The liability to pay tax has fallen upon the petitioner. Vinod was the person who had associated with **WP(C).No.28489 OF 2019(I)** **3** Sudha in conducting the transactions. They cheated the petitioner by using the GST registration number of the petitioner. 3. This writ petition is filed for issuing a direction to the third respondent, the District Police Chief, Palakkad, to entrust the investigation of the case to the Crime Branch. It is alleged by the petitioner that the local police has not conducted any effective investigation in the case. It is stated that the local police has only limited resources to investigate the case. They have not recorded the statement of the persons with whom the accused had business transactions using the trade name and GST account number of the petitioner. Therefore, it is necessary to conduct the investigation of the case by an agency having sufficient skill and experience. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The investigating officer has filed a statement, narrating in detail, the steps taken during the investigation of the case. It is stated that the details of the GST transactions have been collected from the authority concerned and verified. It is stated that, the investigation has revealed that, the petitioner allowed to use the bill of his establishment with his GST registration to be used by persons who had no GST registration to conduct their transactions and he earned **WP(C).No.28489 OF 2019(I)** **4** profit in such dealings but he failed to remit the tax. After completing the investigation, the investigating officer had reached a conclusion that the case is false. Accordingly, a report to that effect has been filed in the competent court on 18.10.2019. It is further stated that notice regarding the refer report filed by the police has also been served on the petitioner. 6. What is the procedure to be adopted by a Magistrate, in a case where the police files a final report or 'refer report' to the effect that there is no case made out for sending the accused for trial? The Magistrate has got three options in such cases. They are: (1) The Magistrate may agree with the said report and accept the final report and close the proceedings (2) He may take the view that the opinion formed by the police is not based on a full and complete investigation and that there is scope for further investigation and direct further investigation to be conducted under Section 156 (3) Cr.P.C (3) He may form an opinion that the facts set out in the final report constitute an offence and he may take cognizance of the offence under Section 190(1)(b) Cr.P.C notwithstanding the contrary opinion of the police expressed in the final report (See **Abhinandan Jha v. Dinesh Misra : AIR 1968 SC 117 and Bhagwant Singh v. Commissioner of Police : AIR 1985 SC 1285** ). **WP(C).No.28489 OF 2019(I)** **5** 7. What is the remedy available to the victim/informant of an offence, in a case where the police files a final report or 'refer report' to the effect that there is no case made out for sending the accused for trial? ## 8. In **Kishore Kumar Gyanchandani v. G. D. Mehrotra :** ## **AIR 2002 SC 483** , it has been held as follows: _“It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an ” offence ._ (emphasis supplied). ## 9. In **Gangadhar Janardan Mhatre v. State of Maharashtra :** ## **AIR 2004 SC 4753** , it has been observed as follows: _“There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice”._ ## 10. Therefore, it is now well settled that, in a case where the **WP(C).No.28489 OF 2019(I)** **6** police files a refer report to the effect that there is no case made out for sending the accused for trial, the complainant is entitled to object to the acceptance of the refer report by the Magistrate by filing a protest complaint (See also **Vishnu Kumar Tiwari v. State of U.P : AIR 2019 SC 3482** ). Since it is well within the power of the Magistrate to order further investigation under Section 156 (3) Cr.P.C on filing of a refer report by the police, it would also be open to the complainant to object to the acceptance of the refer report by the Magistrate by filing an application for issuing a direction to the police to conduct such investigation. 11. As held in **Bhagwant Singh** (supra), in a case where the Magistrate, to whom a refer report is forwarded, decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate shall give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. A victim of an offence, who is not the informant, is not entitled to be given notice when a refer report comes up for consideration by the Magistrate. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the **WP(C).No.28489 OF 2019(I)** **7** report is considered by the Magistrate for the purpose of deciding what action he should take on the report. 12. This writ petition was filed on 24.10.2019. The investigating officer had filed refer report in the Magistrate's Court on 18.10.2019. In such circumstances, the writ petition was not the proper remedy. As held in **Gangadhar Janardan Mhatre** (supra), without availing the remedy under the Criminal Procedure Code, the petitioner could not have approached this Court with the writ petition. May be, he might not have received the notice on the refer report from the Magistrate's Court. At any rate, now he has become aware of the refer report filed by the police in the case. His remedy is to approach the Magistrate's Court concerned and seek appropriate relief. Consequently, the writ petition is dismissed. The petitioner is at liberty to approach the Magistrate's Court concerned and seek appropriate relief. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **WP(C).No.28489 OF 2019(I)** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF COMPLAINT FILED BEFORE THE PALAKKAD TOWN SOUTH POLICE DATED 30.4.2019** - **EXHIBIT P2** - **COPY OF RECEIPT FOR THE COMPLAINT FILED BEFORE THE PALAKKAD TOWN SOUTH POLICE STATION DATED 1.5.2019.** **EXHIBIT P3 TRUE COPY OF FIS GIVEN TO PALAKKAD TOWN SOUTH POLICE DATED 17.5.2019** - **EXHIBIT P4 TRUE COPY OF FIR IN CRIME NO 384/2019 OF PALAKKAD TOWN SOUTH POLICE STATION DATED 17.5.2019** - **EXHIBIT P5 THE TRUE COPY OF THE DEMAND NOTICE FROM THE STATE GST AUTHORITIES ISSUED TO THE PETITIONER DATED 12.7.2019** - **EXHIBIT P6 A TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF MAY 2018** - **EXHIBIT P6 B TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF JUNE 2018** - **EXHIBIT P6 C TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF JULY 2018** - **EXHIBIT P6 D TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK CHANDRANAGAR FOR THE MONTH OF AUGUST 2018** - **EXHIBIT P6 E TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF SEPTEMBER 2018** - **EXHIBIT P6 F TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF OCTOBER 2018** - **EXHIBIT P6 G TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF NOVEMBER 2018** **WP(C).No.28489 OF 2019(I)** **9** **EXHIBIT P6 H TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF DECEMBER 2018** - **EXHIBIT P6 I TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF JANUARY 2019** - **EXHIBIT P6 J TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF FEBRUARY 2019** - **EXHIBIT P6 K TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF MARCH 2019** - **EXHIBIT P6 L TRUE COPY OF BANK ACCOUNT STATEMENT OF THE PETITIONER WITH HDFC BANK, CHANDRANAGAR FOR THE MONTH OF APRIL 2019** - **EXHIBIT P7 COPY OF COMPLAINT FILED BEFORE THE DISTRICT POLICE CHIEF DATED 23.8.2019** - **EXHIBIT P8 COPY OF RECEIPT OF COMPLAINT ISSUED TO DISTRICT POLICE CHIEF, PALAKKAD DATED 24.8.2019** - **EXHIBIT P9 COPY OF COMPLAINT SEND TO DGP KERALA DATED 4.9.2019** - **EXHIBIT P10 COPY OF ACKNOWLEDGEMENT CARD FOR THE RECEIPT OF COMPLAINT BY THE DGP** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**