Rajesh Narayanan and others v. State of Kerala and Philomina T.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.MC NO. 3214 OF 2021 CRIME NO.1111/2015 OF Museum Police Station,** **Thiruvananthapuram** **AGAINST CC 191/2018 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED NO.1 TO 5:** 1 RAJESH NARAYANAN AGED 57 YEARS S/O. SANKARA NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 2 RANJITH MOHAN, AGED 42 YEARS S/O. SASIDHARAN, RESIDING AT INDEEVARAM, MOLLAVILAKOM, THAMBURANMUKKU, PATTOOR, THIRUVANANTHAPURAM, PIN-695 011. 3 MINI KUMARI, AGED 53 YEARS W/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 4 DR. RAHUL, AGED 34 YEARS S/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 Crl.M.C.Nos.3214 & 3222/2021 -:2:- 5 MITHUN, AGED 30 YEARS S/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 BY ADVS. PARVATHY S.KRISHNAN P.VIJAYA BHANU (SR.) ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 2 PHILOMINA T.K. AGED 49 YEARS W/O. WILSONRAJ, RESIDING AT GREENFEILD, MATHA NAGAR, KATTAKADA P.O, THIRUVANANTHAPURAM, PIN-695 572. BY ADV A.B.MOHANAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.08.2022, ALONG WITH Crl.MC.3222/2021, THE COURT ON 16.08.2022 PASSED THE FOLLOWING: Crl.M.C.Nos.3214 & 3222/2021 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.MC NO. 3222 OF 2021** **AGAINST CC 1620/2015 OF CHIEF JUDICIAL MAGISTRATE COURT,** ## **THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED NO.1 TO 6:** 1 RAJESH NARAYANAN,AGED 57 YEARS S/O. SANKARA NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 - 2 MINI KUMARI, AGED 53 YEARS W/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O,THIRUVANANTHAPURAM DISTRICT, PIN-695 564 3 DR. RAHUL, AGED 34 YEARS S/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 4 MITHUN, AGED 30 YEARS S/O. RAJESH NARAYANAN, RESIDING AT DEVIPRIYA, AMMAN NAGAR, KARAKULAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 564 5 RANJITH MOHAN, AGED 42 YEARS S/O. SASIDHARAN, RESIDING AT INDEEVARAM, MOLLAVILAKOM, THAMBURANMUKKU, PATTOOR, THIRUVANANTHAPURAM, PIN-695011 Crl.M.C.Nos.3214 & 3222/2021 -:4:- 6 M/S.BHARATHEEYA CABLE VISION, REGISTERED OFFICE AT T.C. 14/1729, NEAR GANAPATHY TEMPLE, VAZHUDACAUD, THYCAUD P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 014 BY ADVS. PARVATHY S.KRISHNAN P.VIJAYA BHANU (SR.) ## **RESPONDENTS/COMPLAINANTS & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. 2 PHILOMINA.T.K AGED 49 YEARS W/O. WILSONRAJ, RESIDING AT GREENFEILD, MATHA NAGAR, KATTAKADA P.O, THIRUVANANTHAPURAM, PIN-695 572 BY ADV A.B.MOHANAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.08.2022, ALONG WITH Crl.MC.3214/2021, THE COURT ON 16.08.2022 PASSED THE FOLLOWING: Crl.M.C.Nos.3214 & 3222/2021 ## -:5:- O R D E R Dated this the 16[th ] day of August, 2022 Both the above Crl.M.Cs have been filed u/s 482 of Cr.P.C to quash the proceedings on the ground of settlement between the parties. 2. Both cases are connected and parties are the same. Hence, I am disposing of them together. 3. Crl.M.C No.3214/2021 pertains to Crime No.1111/2015 of Museum Police Station, now pending as CC No.191/2018 and Crl.M.C.No.3222/2021 pertains to CC No.1620/2015 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram (for short, 'the court below'). 4. The petitioners in both cases are the accused and the 2[nd] respondent is the defacto complainant. 5. The offences alleged in CC No.191/2018 are under Sections 406, 420, 342, 323, 354 and 506(1) r/w 34 of IPC. The prosecution case therein is that the accused Nos.1 and 2 deceived the defacto complaint who was working as an employee Crl.M.C.Nos.3214 & 3222/2021 -:6:- in a company run by them and induced her to pay huge amount offering the Directorship of the said company. Thereafter, when the defacto complainant demanded back the said amount, the accused locked her in a room, assaulted and criminally intimidated her. 6. The offences alleged in CC No.1620/2015 are under Sections 120B, 420, 406 506, 354, r/w 34 of IPC. The prosecution case therein is that the de facto complainant made certain financial transaction by advancing certain amount to the 6[th] accused company of which the accused No.1 is the Managing Director, the accused No.2 is CEO, the accused Nos. 3 and 4 are the Director Board members and the accused No.5 is the Manager. When the defacto complainant approached the accused and demanded for return of the money, they locked her in a room, assaulted and criminally intimidated her. 7. According to the petitioners, the entire dispute between the parties were settled between them and the 2[nd] respondent amicably. It was in these circumstances, the above Crl.M.Cs were filed to quash the proceedings on the ground of settlement invoking S.482 of Cr.P.C. Along with the Crl.M.Cs., the affidavits Crl.M.C.Nos.3214 & 3222/2021 -:7:- sworn in by the 2[nd] respondent have been produced as Annexure A2. In the said affidavits which are attested by the Advocate, the 2[nd] respondent clearly stated that the entire dispute between her and the petitioners had been settled amicably and voluntarily out of court in the presence of relatives, counsel and mediators and she has no objection in quashing both the cases against the petitioners. 8. During the pendency of the above Crl.M.Cs, the 2[nd] respondent sent a letter to the Registrar, High Court of Kerala stating that without her knowledge or consent, an Advocate filed vakalath for her. According to her, she does not want to settle the cases. Thereafter, another Advocate entered appearance on behalf of the 2[nd] respondent. 9. I have heard Sri.P.Vijayabhanu, the learned senior counsel appearing for the petitioners, Sri.A.B.Mohanakumar, the learned counsel appearing for the 2[nd] respondent and Sri.Sangeetha Raj, the learned Public Prosecutor in both the cases. 10. The learned Senior counsel Sri.Vijayabhanu submitted that the entire disputes have been settled between the parties by Crl.M.C.Nos.3214 & 3222/2021 -:8:- executing an agreement which has been produced as Annexure A3. The counsel submitted that as part of settlement, `12,00,000/- was paid by the petitioners to the 2[nd] respondent. The counsel further submitted that thereafter the 2[nd] respondent demanded `3,00,000/- more which was also paid as evident from Annexures A4 and A5. After receiving the entire amount, the 2[nd] respondent is wriggling out of the settlement, which is impermissible under law, submitted the counsel. On the other hand, the learned counsel for the 2[nd] respondent Sri.Mohanakumar submitted that the dispute was not settled fully and some more amount is yet to be paid. The counsel further submitted that the 2[nd] respondent did not swear in Annexure A2 affidavit and the signature therein is fabricated. 11. Annexure A3 is the agreement executed between the 1[st] petitioner and the 2[nd] respondent. Even though the 2[nd] respondent disputes her signature in Annexure A2 affidavit, she does not dispute her signature in Annexure A3 agreement. In fact, Annexure A3 agreement is not disputed at all. A reading of Annexure A3 would show that the entire dispute have been settled between the petitioners and the 2[nd] respondent and the Crl.M.C.Nos.3214 & 3222/2021 -:9:- 2[nd] respondent has agreed to withdraw both the criminal cases mentioned above. As per the terms of the settlement, the petitioners have agreed to pay `12,00,000/- to the 2[nd] respondent. Annexure A4 is another agreement executed between the Advocates representing the defacto complainant and the petitioners at the court below. The said agreement is also not disputed by the 2[nd] respondent. The recital in the said agreement as well as the statement given by the 2[nd] respondent to the police would show that the 2[nd] respondent received `12,00,000/- mentioned in Annexure A3 agreement. In Annexure A4 agreement, it is recited that the 2[nd] respondent demanded a further sum of `3,50,000/-. The said amount was agreed to be given to the counsel for the 2[nd] respondent. Annexure A5 would show that 2[nd] respondent received the said `3,00,000/- from her counsel. The signature in Annexure A5 also is not disputed by the 2[nd] respondent. The learned Public Prosecutor has made available to me the original of the statement given by the 2[nd] respondent to the police. The said statement contains the signature of the 2[nd] respondent. She does not dispute the said signature as well. In the said statement, she has categorically Crl.M.C.Nos.3214 & 3222/2021 -:10:- admitted that the entire dispute has been settled and she does not want to proceed with the two cases (CC No.191/2018 and CC No.1620/2015) and that she has no objection in quashing the proceedings. It is thereafter she withdrew from the settlement. I have compared the signature of the 2[nd] respondent in Annexure A2 affidavit, in Annexures A3 to A5 documents and in the statement given by the 2[nd] respondent before the police with the admitted signature of the 2[nd] respondent available in the court proceedings. All signatures are one and the same. Thus, it is clear that, the 2[nd] respondent, after entering into an agreement to settle the dispute, wriggled out of the settlement without any valid reason. The 2[nd] respondent cannot approbate and reprobate. It is a fact that she has availed all the benefits of the settlement and after availing that benefit, she cannot unilaterally withdraw from the settlement which has come into effect. 12. The 2[nd] respondent has produced an agreement executed between the first petitioner and the 2[nd] respondent dated 26/2/2016. Relying on the said agreement, the learned counsel for the 2[nd] respondent submitted that the stipulation in the said agreement would show that the petitioners have agreed Crl.M.C.Nos.3214 & 3222/2021 -:11:- to pay a total amount of `35,00,000/- to settle the cases and that the petitioners have only paid `15,00,000/- out of it. The said agreement is of the year 2016. It was thereafter that Annexures A3 and A4 agreements were executed. Hence, those agreements suprecede the agreement dated 26/2/2016. The entire consideration agreed to be paid in Annexures A3 and A4 agreements have been paid as discussed above. Hence, the said contention of the learned counsel for the 2[nd] respondent has no basis. In a case decided by the Apex Court [ _**Ruchi Agarwal v. Amit Kumar Agrawal and Others**_ (2005) 3 SCC 299] in a divorce petition, the husband and the wife entered into a compromise whereby both of them agreed for a consent decree for divorce. They have also agreed to withdraw all criminal and civil complaints filed against each other. Thereafter, the Family Court granted a divorce decree u/s 13B of the Hindu Marriage Act dissolving the marriage by mutual consent. However, the wife did not take any steps to withdraw the criminal proceeding pending against the husband u/s 498A, 323 and 506 of IPC. It was in these circumstances, the husband approached the High Crl.M.C.Nos.3214 & 3222/2021 ## -:12:- Court to quash the proceedings. The Apex court quashed the proceedings as the same was a matter which was agreed to while entering into compromise by the parties. The dictum laid down in the said case squarely applies to the facts of this case. Considering the entire facts and circumstances, I am of the view that the continuation of the criminal proceedings pending against the petitioners would be an abuse of the process of the court. Accordingly, all further proceedings in CC Nos.191/2018 and 1620/2015 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram are hereby quashed. Crl.M.Cs are allowed. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.Nos.3214 & 3222/2021 -:13:- ## **APPENDIX OF CRL.MC 3214/2021** PETITIONERS' ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FIINAL REPORT/CHARGE SHEET, IN CRIME NO. 1111 OF 2015 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT. Annexure A2 THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT. Annexure A3 COPY OF THE AGREEMENT ENTERED BY THE 1ST PETITIONER AND THE 2ND RESPONDENT/DEFACTO COMPLAINANT DATED 12/7/2021. Annexure A4 COPY OF THE AGREEMENT ENTERED BETWEEN THE ADVOCATES REPRESENTING THE DEFACTO COMPLAINANT AND THE PETITIOENRS IN THE COURT BELOW DATED 21/9/2021. Annexure A5 COPY OF THE RECEIPT EXECUTED BY THE DEFACTO COMPLAINANT DATED 21/9/2021 ## **RESPONDENT'S EXHIBITS** Annexure R2(a) TRUE COPY OF AGREEMENT DATED 26/2/2016 BETWEEN THE PETITIONER PHILOMINA AND RAJESH NARAYANAN Crl.M.C.Nos.3214 & 3222/2021 ## -:14:- ## **APPENDIX OF CRL.MC 3222/2021** PETITIONERS' ANNEXURES Annexure A1 THE TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT HEREIN BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM DISTRICT. Annexure A2 THE AFFIDAVIT SOLEMNLY AFFIRMED BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT. Annexure A3 COPY OF THE AGREEMENT ENTERED BY THE 1ST PETITIONER AND THE 2ND RESPONDENT/DEFACTO COMPLAINANT DATED 12/7/2021. Annexure A4 COPY OF THE AGREEMENT ENTERED BETWEEN THE ADVOCATES REPRESENTING THE DEFACTO COMPLAINANT AND THE PETITIOENRS IN THE COURT BELOW DATED 21/9/2021. Annexure A5 COPY OF THE RECEIPT EXECUTED BY THE DEFACTO COMPLAINANT DATED 21/9/2021 ANNEXURE A6 ORIGINAL OF THE AGREEMENT ENTERED BY THE 1ST PETITIONER AND THE 2ND RESPONDENT/DEFACTO COMPLAINANT DATED 12/7/2021 ANNEXURE A7 ORIGINAL OF THE RECEIPT EXECUTED BY THE DEFACTO COMPLAINANT DATED 21/9/2021. Annexure R2(a) ORIGINAL OF THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE ADVOCATE RAJEEV KUMAR V. DATED 30/10/2021