P.R. Vijayakumar v. M.R. Basheer and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **Crl.MC.No. 6693 of 2016** **AGAINST THE PROCEEDINGS IN CC NO.368/2012 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY CRIME NO. 857/2011 OF KARUNAAGAPALLY POLICE STATION, KOLLAM** ## **PETITIONER/1ST ACCUSED:** **P.R.VIJAYAKUMAR, S/O.RAGHAVAN NAIR, AGED 55 YEARS, 37/2690, PRANAVAM, NEAR HARMONY VILLAS, VATAPARAMBU WEST ROAD, KALOOR, KOCHI 682 017. BY ADV. SRI.K.S.SAJEEV KUMAR** ## **RESPONDENTS:** |**1**|**M.R.BASHEER, AGED 58 YEARS,**| |---|---| ||**S/O.MOHAMMED KUNJU,**| ||**DHARUL AMAL HOUSE, PUNNAKULAM,**| ||**ADHINAD, KARUNAGAPPALLY PO.690 518.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM - 682 031**| ||**BY ADVS.**| ||**SRI.E.C.AHAMED FAZIL**| ||**SMT.M.SHAJNA**| ||**SMT.UMMUL FIDA**| ||**SRI.K.M.FIROZ**| **SRI. M.S. SBREEZ - PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 6693 of 2016 2 ## **ORDER** The petitioner herein is the 1[st] accused in C.C.No.368/2012 on the files of the Judicial First Class Magistrate, Karunagappally. In this petition filed under Section 482 of the Cr.P.C., he seeks to quash the said criminal proceeding. 2. The 1[st] respondent herein is the de facto complainant. He constructed a four storeyed commercial building at Karunagappally. He wanted to install an elevator and for that purpose, contacted M/s. Atlanta Elevators India Pvt. Ltd, a company engaged in the installation and maintenance of lifts and elevators. The 2[nd] accused is the Managing Director and the registered office of the Company is situated at Bangalore. An agreement was executed between the 1[st] respondent and the 2[nd] accused by which, the 2[nd] accused agreed to complete the construction of the lift within a period of six months. A sum of Rs.3,30,000/- was paid by way of advance and the said amount was directly transferred to the account of the Company. According to the 1[st] respondent, the petitioner herein is an employee of the Company and he had interacted with the de facto complainant for and on behalf of M/s. Atlanta Elevators India Pvt.Ltd. Crl.MC.No. 6693 of 2016 3 3. After receiving the advance amount, when the elevator was not installed, the 1[st] respondent filed a complaint before the learned Magistrate, which was referred to the police under Section 156(3) of the Cr.P.C.. A Crime was registered and after completing the investigation, final report was laid under Sections 420, 120B r/w. Section 34 of the IPC. 4. Sri.K.S.Sajeev Kumar, the learned counsel appearing for the petitioner, would contend that the petitioner was merely a paid employee of M/s. Atlanta Elevators Pvt. Ltd. He joined the Company as an Operations Manager and he was on probation for a period of six months as is evident from Annexure-A2 confirmation letter. On 10.12.2009, he had submitted his letter of resignation and he was relieved by the Company on 26.12.2009 as is evident from AnnexureA4. He would contend that even according to the 1[st] respondent, the amount was transferred by the 1[st] respondent to the accounts of the Company based on an agreement and if any violation was committed by the Company, the 1[st] respondent was well within his rights to seek remedies under the Civil Law. By no stretch of imagination, can the petitioner, who is merely a paid employee, be held responsible for the failure of the Company to meet its obligation. At any rate, there is no case for the 1[st] respondent that the accused had any intention to Crl.MC.No. 6693 of 2016 4 deceive at the inception and merely because, the agreement entered into by the parties was not performed, the petitioner cannot be held liable under Section 420 of the IPC. 5. Sri.K.M.Firoz, the learned counsel appearing for the 1[st] respondent, very stoutly refuted the submissions. According to the learned counsel, no reliance can be placed on Annexures-A2 to A4 documents, which are pressed into service while considering a petition under Section 482 of the Cr.P.C. It is submitted that it was the petitioner, who had interacted with the 1[st] respondent and had persuaded him to give the contract to M/s. Atlanta Elevators India Pvt. Ltd. 6. I have anxiously considered the submissions advanced and have gone through the materials. Admittedly, the petitioner herein had worked as Operations Manager of M/s. Atlanta Elevators India Pvt.Ltd., for some time. While he was working as aforesaid, the Company entered into an agreement with the 1[st] respondent to install an elevator in his building. Some money has also changed hands. Later, the Company went back on its promise and failed to install the elevator. There is no case that the inducement was fraudulent at the inception or that M/s.Atlanta Elevators Pvt. Ltd. was not in the business of erecting elevators. For the failure of the Company to live Crl.MC.No. 6693 of 2016 5 up to its promise, the petitioner, who is merely an employee cannot be held liable for the offence of cheating. The petitioner, as an employee, may not be in a position to prevail upon the management to honour the contract. It is trite that if the inducement referred to in Sections 415 and 420 of the IPC is offered honestly without any intention to deceive the other party, the offence of cheating is not made out even though, at a later stage, the person who had offered the inducement developed oblique motives. In otherwords, for the default of the Company in honouring the commitment, a paid employee, who was acting in good faith, cannot be held liable under Section 420 of the IPC. ## 7. In **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors.** , [(1988) 1 SCC 692], the Hon’ble Supreme Court observed as follows: “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate Crl.MC.No. 6693 of 2016 6 conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” ## 8. Further in **Janata Dal v. H.S. Chowdhary and Ors.** , ## [(1992) 4 SCC 305], the Apex Court observed as follows: “132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court Under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” 9. Having considered the entire facts and in the light of the above precedents, I am of the view that this is a fit case, wherein this Court will be justified in terminating the criminal proceedings at the threshold stage itself. Crl.MC.No. 6693 of 2016 7 In the result, this petition is allowed. Annexure-A1 FIR along with the final report in Crime No.857 of 2011 of the Karunagapally Police Station and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.368 of 2012 on the file of the Judicial First Class Magistrate Court, Karunagappally are quashed. ## **SD/-** IAP ## **RAJA VIJAYARAGHAVAN V., JUDGE //TRUE COPY// P.A.TO JUDGE** Crl.MC.No. 6693 of 2016 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **CERTIFIED COPY OF THE FIR IN CRIME NO.857/2011 OF KARUNAGAPPALLY POLCE STATION ALONG WITH THE FINAL REPORT THEREON** **ANNEXURE A2 A TRUE COYP OF THE CONFIRMATION LETTER NO.REF: ATL/EMP/031 DATED 1.8.2006 ISSUED BY ATLANTA ELEVATORS (I) P.LTD.** **ANNEXURE A3 A TRUE COPY OF THE RESIGNATION LETTER NO.AE/VK/CHN/292 DATED 10.12.2009** **ANNEXURE A4 A TRUE COY OF THE LETTER NO.ATL/HO/ADMN/266 DATED 26.12.2009 ISSUED BY M/S.ATLANTA ELEVATORS (I) P.LTD.** **RESPONDENTS' EXHIBITS:** NIL