Paul.K.O. v. State of Kerala (CRL.M.C. No. 4575 of 2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945`** ## **`CRL.MC NO. 4575 OF 2023 CRIME NO.335/2023 OF ANGAMALY POLICE STATION`** ## **`PETITIONER/ACCUSED:`** ``` PAUL.K.O.,AGED46YEARS,S/O.OUSEPH, KOORANKALLOOKKARANHOUSE,ANGADIKADAVU, - ANGAMALY.P.O.,ERNAKULAM,PIN683572 ``` ``` BYADVS. C.A.CHACKO C.M.CHARISMA ``` ## **`RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALAREPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM,PIN682031 ``` ``` 2STEPHEN,S/O.POULO,VAZHAPPILLYHOUSE,CHENGAL, - KANJOOR,VADAKKUMBHAGOM,ERNAKULAM,PIN683574 ``` ``` BYADVS. ``` ``` TSAJI T.V.JAYAKUMARNAMBOODIRI(K/003198/1999) ``` ``` SRI.TRRENJITH,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 24.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C. No.4575 of 2023 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure. 2. The petitioner herein is the sole accused in Crime No.335/2023 of the Angamaly Police Station registered for offenses punishable inter alia under Sections 406 and 420 IPC. 3. Short facts are as under. The complainant, in his statement to the police, identified himself as a businessman. When his finances were in dire straits, he is alleged to have approached the petitioner, who operates a private finance firm called "Anns Finance." The complainant alleges that he, alongside his wife, borrowed a sum of Rs 4 Lakhs on 15.4.2017, backed by cheques as a form of guarantee. He had been making consistent repayments. Subsequently, on 2.5.2017, the complainant borrowed an additional amount of Rs 1,95,000 from the petitioner and had been repaying it in equal daily installments of Rs.600. However, due to health issues and the impact of the pandemic, he defaulted on his payments. The petitioner, claiming the amounts, instituted a suit to recover an amount of Rs 11,00,000. In an effort to settle the debt, the complainant considered selling his property. Crl.M.C. No.4575 of 2023 3 However, it is alleged that the petitioner secured an attachment in the suit filed by him and interdicted him from selling the said property. It is on these allegations that a complaint was filed, leading to the registration of the crime. 4. Smt Charisma, the learned counsel appearing for the petitioner, submitted that the only allegation is that the petitioner instituted a suit for recovery of money on the strength of a cheque in the year 2018 and obtained an attachment. It is submitted that a complaint under Section 138 of the Negotiable Instruments Act and a suit for the realization of money was filed in the year 2017 itself, as is evident from Annexures A2 and A3. The party respondent failed to appear before the learned Magistrate, and a non-bailable warrant is pending against him. Instead of prosecuting the matter, a false complaint was lodged after about 6 years, which according to the learned Counsel amounts to a clear abuse of process. It is submitted that the Civil Case has been transferred to the Commercial Court, Ernakulam, and has been renumbered as CS No.108 of 2021. Similar proceedings before the Criminal Court as well as the Civil Court have been instituted against the wife of the party respondent as well. It is further submitted that even if the allegations are accepted as such, no offence as alleged will be made out. Crl.M.C. No.4575 of 2023 4 5. The learned counsel appearing for the party respondent submitted that the investigation has only commenced, and no case is made out for quashing the proceedings at the threshold stage itself. 6. I have considered the submissions. At the outset, it is to be noticed that the crime has been registered under Sections 406 and 420 of the IPC. The allegation is that certain amounts were advanced by the petitioner to the party respondent and his wife, and he has mis-utilised the cheques and has instituted proceedings before the Civil as well as Criminal Courts for inflated amounts. There is no explanation as to why the complainant had to wait seven years to set the law in motion. It is also undisputed that the complainant has failed to appear before the Criminal Court, and the case has been included in the list of long pending cases. I find that the complainant has filed Annexure A4 written statement on 20.3.2018 wherein he has no allegation as stated in the criminal complaint. 7. Now, the question is whether the alleged offenses would be made out on the strength of the allegations above. Section 406 of the IPC deals with criminal misappropriation of property, whereas Section 420 of the IPC deals with cheating. In the case of criminal misappropriation, the accused comes into possession of a property or acquires dominion over a property honestly and bonafide, but he develops dishonest intentions Crl.M.C. No.4575 of 2023 5 subsequent to the taking of possession and having developed such dishonest intention, he dishonestly misappropriates or converts to his own use the property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person to do so. However, in the case of cheating, the intention of the accused is dishonest from the very inception itself. In other words, while in “criminal breach of trust” accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of “cheating” is one wherein the accused has dishonest intention from the very commencement of the transaction. In light of the above distinction, it becomes clear that if a person is accused of having committed an offence of “Criminal breach of trust” he cannot, on the same facts, be accused of having committed the offence of “cheating.” In the instant case, there is no case for the party respondent that the petitioner came into possession of a property or has acquired dominion over a property honestly and bonafide, and he later dishonestly misappropriated the same. There is also no case for the party respondent that the petitioner had any guilty Crl.M.C. No.4575 of 2023 6 intention at the inception. In the above circumstances, even if the allegations are accepted as such, none of the offences would be attracted in the instant case. 8. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its 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 paragraphs 102 and 103 of the judgment, which read 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 > 1 1992 Supp (1) SCC 335 Crl.M.C. No.4575 of 2023 7 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 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. Crl.M.C. No.4575 of 2023 8 - (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. 9. The Apex Court had held that in those cases 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, it can be termed to be a fit case for quashing the proceedings. The same is the case 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. Having considered the facts and tested in the light of the directions in **Bhajan Lal** (supra), I am of the view that conditions Nos.5 and 7 would squarely apply to the facts of the instant case. Crl.M.C. No.4575 of 2023 9 ## 10. In **Mohammad Wajid and Another v. State of U.P. and** **Ors.**[2] , the Apex Court underscored a principle when an accused seeks to terminate proceedings by raising a contention that the allegations are unduly trivial, vexatious, or motivated by spite. The Hon’ble Court emphasized that the allegations in the First Information Report/complaint are to be meticulously scrutinized to discern whether it possesses the necessary elements of the alleged offense. When proceedings appear frivolous or vexatious, it is the responsibility of the Court to assess additional context from the case records and, when appropriate, discern underlying intentions. It was held that though mere delay in the registration of the FIR may not by itself be a valid reason, when combined with other materials which render the prosecution case improbable and suspicious, it could serve as a formidable ground to interdict the frivolous prosecution at the threshold stage itself. In **Mohammed Wajid** (supra), there was an over one-year delay in registering the FIR, with no plausible or convincing examination for the delay. Paragraph Nos. 34 and 35 of the judgment read as follows: 34. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the - 2 2023 SCC OnLineSC 951 Crl.M.C. No.4575 of 2023 10 Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with 36 all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. 35. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of Crl.M.C. No.4575 of 2023 11 materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:- - “5. …Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6) - (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; - (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; - (iii) where the allegations constitute an offence, but there is no Crl.M.C. No.4575 of 2023 12 legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death…..” (Emphasis supplied) ## 11. As regards the delay in lodging FIR it was held as follows in paragraph No. 37 of the above judgment. 37. In the aforesaid context, we may clarify that delay in the registration of the FIR, by itself, cannot be a ground for quashing of the FIR. However, delay with other attending circumstances emerging from the record of the case rendering the entire case put up by the prosecution inherently improbable, may at times become a good ground to quash Crl.M.C. No.4575 of 2023 13 the FIR and consequential proceedings. If the FIR, like the one in the case on hand, is lodged after a period of more than one year without disclosing the date and time of the alleged incident and further without any plausible and convincing explanation for such delay, then how is the accused expected to defend himself in the trial. It is altogether different to say that in a given case, in the course of investigation the investigating agency may be able to ascertain the date and time of the incident, etc. The recovery of few incriminating articles may also at times lend credence to the allegations levelled in the FIR. However, in the absence of all such materials merely on the basis of vague and general allegations levelled in the FIR, the accused cannot be put to trial. 12. The exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious, or oppressive. The authority of the court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent such abuse. In the exercise of powers under Section 482 of the Code, this Court will be justified in quashing any proceeding if it finds that initiation or continuance of the proceedings amounts to abuse of the process of the court. Having considered the facts of the instant case in the light of the principles laid above, I have no doubt in my mind that the allegations are vexatious and frivolous and made only to spite the petitioner. In that view of the matter, I hold that the continuance of the criminal proceedings against Crl.M.C. No.4575 of 2023 14 the petitioner would result in an abuse of process. In view of the discussion above, I am of the considered opinion that the petitioner is entitled to succeed in this petition. Crime No.335/2023 of the Angamali Police Station and all further proceedings pursuant thereto against the petitioner are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C. No.4575 of 2023 15 ## **`APPENDIX OF CRL.MC 4575/2023`** ``` PETITIONER’SANNEXURES: ``` |`Annexure `|`A1`|`CERTIFIED COPY OF FIR IN CRIME NO.335/23 OF`| |---|---|---| |||`ANGAMALY POLICE STATION DATED 26/4/2023`| |||`ALONG WITH FIS`| |`Annexure `|`A2`|`TRUE COPY OF PRIVATE COMPLAINT FILED BY THE`| |||`PETITIONER IN OCTOBER 2017, WHICH IS NOW`| |||`PENDING AS ST.NO.1060/22 BEFORE JFCM,`| |||`ANGAMALY`| |`Annexure `|`A3`|`TRUE COPY OF PLAINT IN OS.NO.415/2017 FILED`| |||`BY THE PETITIONER BEFORE MUNSIFF COURT,`| |||`ALUVA`| |`Annexure `|`A4`|`TRUE COPY OF WRITTEN STATEMENT FILED IN`| |||`OS.NO.415/2017 DATED 20/3/2018`| |`Annexure `|`A5`|`TRUE COPY OF PRIVATE COMPLAINT FILED BY THE`| |||`PETITIONER IN OCTOBER 2017, WHICH IS NOW`| |||`PENDING AS ST.NO.1061/22 BEFORE JFCM,`| |||`ANGAMALY`| |`Annexure `|`A6`|`TRUE COPY OF PLAINT IN OS.NO.141/2019 FILED`| |||`BY THE PETITIONER BEFORE MUNSIFF COURT,`| |||`ALUVA`| |`Annexure `|`A7`|`TRUE COPY OF WRITTEN STATEMENT FILED IN`| |||`OS.NO.141/2019 DATED 24/6/2019`| |`Annexure `|`A8`|`TRUE COPY OF ORDER OF SESSIONS COURT,`| |||`ERNAKULAM DATED 10/5/2023 IN`| |||`CRL.M.C.NO.1341/2023`|