Saju Moolan v. State of Kerala and Varghese Moolan

Crl.M.C.No.2542/2018 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943_ _CRL.MC NO. 2542 OF 2018_ ## _PETITIONER/S:_ _SAJU MOOLAN, AGED 54 YEARS, S/O.DEVASSY MOOLAN, MOOLAN HOUSE, NEAR GOVERNMENT HOSPITAL, ANGAMALY, EAST JUNCTION, PIN - 683 572._ _BY ADVS. SRI.SHEEJO CHACKO SMT.LAYA SIMON SRI.G.S.REGHUNATH_ ## _RESPONDENT/S:_ _1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 VARGHESE MOOLAN, MOOLAN HOUSE, KALLUPALAM, ANGAMALY, ERNAKULAM DISTRICT. BY ADVS.C.UNNIKRISHNAN (KOLLAM) M.R.SUDHEENDRAN ANANDA PADMANABHAN UTHARA A.S MAHESH CHANDRAN VIJAYKRISHNAN S. MENON_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON 14.02.2022 PASSED THE FOLLOWING:_ Crl.M.C.No.2542/2018 2 ## **O R D E R** The petitioner is the 3[rd] accused in Crime No.1001 of 2018 of Angamaly Police Station. The aforesaid crime is registered against the petitioner and two others, who are his brothers, for the offences punishable under Sections 420, 468, 471 read with Section 34 IPC. The 2[nd] respondent is the de facto complaint therein who is another brother of the petitioner herein. Annexure-1 is the First Information Report. This Crl.M.C. is filed seeking to quash the aforesaid FIR and all further proceedings pursuant there to, on the ground that the allegations raised against the petitioners are purely civil in nature and no criminal offences as alleged therein are attracted. 2. Heard Sri.G.S.Raghunath, learned counsel for the petitioner, Sri.C.Unnikrishnan learned counsel for the 2[nd] respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 3. The learned counsel for the Petitioner submitted elaborately the sequence of events which ultimately led to the registration of Annexure-1 complaint with specific reference to Annexure-3 to Annexure-19. The factual sequence which are necessary for the consideration of this Crl.M.C. as contended by the Crl.M.C.No.2542/2018 3 learned counsel for the petitioner are as follows: The petitioner herein as well as other accused persons and the de facto complainant are brothers and sons of one Devassy, who passed away on 29.09.2014. All the parties are running several business establishments in the State as well as abroad and commonly referred as ‘Moolans Group’. Specific case of the petitioner is that, the 2[nd] respondent/de facto complainant was abroad and he was handling the affairs of the establishments of the family at abroad. Later, certain misappropriations of amounts were found at the instance of the 2[nd] respondent, which ultimately led to certain disputes between the members of the family. It is pertinent to note in this regard that, the deceased father Sri.Devassy was the Chairman and Managing Director of the establishments of the family. In order to settle all the disputes between the members of the family, a joint decision was taken by all the parties to effect partition of the properties and other assets of the family and the institutions run by them. As part of the same, Annexure-4 was prepared by an approved valuator which contains the details of valuation of every properties jointly owned by the family members and their establishments. Thereafter, the accused persons along with the deceased father and the 2[nd] respondent/de facto Crl.M.C.No.2542/2018 4 complainant executed Annexure-5 Memorandum of Understanding (MOU) with regard to the manner in which the partition of the assets and other properties of the family have to be effected. All the parties including the 2[nd] respondent are signatories of Annexure-5. Page No.3 of Annexure-5 contains the properties/businesses set apart for the de facto complainant. Annexure-6 is the agreement for partition executed between the parties to give effect the terms and conditions agreed upon between the parties as evidenced by Annexure-5. At Page No.2 of Annexure-6, it was agreed by all the parties that they shall execute necessary documents for conveying the properties to give effect the terms and conditions of partition as agreed between them. It is further mentioned therein that in case any person is unable to execute any of the documents in person, he shall execute a Power of Attorney in favour of the father of the petitioner. As the 2[nd] respondent was abroad, he executed Annexure-7 Power of Attorney in favour of Sri.Devassy, the father of the parties, enabling him to execute necessary documents in his behalf to implement the terms and conditions as agreed in Annexure-5 and Annexure-6. The aforesaid Power of Attorney is dated 23.09.2010. Annexure-7 Power of Attorney was registered in Sub Registrar Office, Angamally. However, immediately after Crl.M.C.No.2542/2018 5 execution of the said Power of Attorney, the 2[nd] respondent executed another deed dated 21.05.2011, canceling the aforesaid Power of Attorney, which also forms part of Annexure-7 produced in this Crl.M.C. Deed of cancellation of Power of Attorney was registered by the 2[nd] respondent at Sub Registrar Office, Edappally, which is away from the Sub Registrar Office, Angamally. The intimation regarding the cancellation of the deed was issued to the father of the petitioner on 02.06.2011 through a registered notice in this regard by the 2[nd] respondent. On 25.05.2011, three documents were registered by the father of the petitioner, which are numbered as 1415/2011, 1416/2011 and 1417/2011, on the strength of the Power of Attorney executed by the 2[nd] respondent and certain properties were released in favour of some of the accused persons. 4. The 2[nd] respondent submitted a complaint before the Inspector General of Registrations, raising allegations that the documents were executed in respect of his properties on the strength of the Power of Attorney which stood canceled as on the date of execution of the said documents. An inquiry was conducted in this regard and the report submitted by District Registrar, pursuant to the said enquiry is Annexure-8. On going through the contents of Annexure-8 report, it can be seen that the authority Crl.M.C.No.2542/2018 6 concerned has arrived at a conclusion that the notice of cancellation was served upon the father of the petitioner/Power of Attorney only on 02.06.2011, which is after the execution of the documents in dispute. Even though, the 2[nd] respondent raised a contention that he had informed the Power of Attorney holder, the father, as to the cancellation of the deed of Power of Attorney on 23.05.2011 itself by way of email and fax, the District Registrar did not accept the same, as the father of the petitioner denied receipt of any such intimation. In the complaint submitted by the 2[nd] respondent in this regard another allegation was that, in the deed executed on the strength of the Power of Attorney, the photo of the 2[nd] respondent was affixed without his knowledge and consent. It was also alleged that thump impression placed on the said documents was not that of his and it was falsely created. The father of the petitioner stated before the authorities that, the thump impression put on the document was his thump impression which was put by him in his representative capacity as the Power of Attorney holder of the 2[nd] respondent. However, since the thump impression was put on the documents without specifying that the same as that of Power of Attorney holder, it was treated as a lapse while executing the said documents. Therefore, the parties were relegated to competent Crl.M.C.No.2542/2018 7 courts for seeking prayer for cancellation of the documents if they require to do so. On the basis of the same, proceedings on Annexure-8 were closed. Later, Annexure-9 agreement was executed between the parties for the purpose of settling the entire disputes. In Clause-3 of Annexure-9, wherein the 2[nd] respondent has agreed that, all the documents executed by his father on the basis of the canceled Power of Attorney were properly executed and the amounts mentioned therein were received by him. Annexure-10 is another document executed between the parties in connection with the further arrangements made between them for implementing the terms of settlement. 5. The learned counsel further pointed out that, despite such terms of settlement arrived at between the parties, the 2[nd] respondent backed out from the same and filed O.S.No.269 of 2013 before Sub Court, North Paravur seeking partition of the properties. Annexure-11 is an application for temporary injunction sought for by the 2[nd] respondent for restraining the respondents therein who are the father and brother of 2[nd] respondent from creating any documents or doing any acts in pursuant to the General Power of Attorney dated 23.09.2010 and also to restrain them from alienating the properties mentioned in the schedule there of. The said Crl.M.C.No.2542/2018 8 application was dismissed by the Sub Court which was later challenged before this Court in FAO No.74 of 2014. Annexure-12 is the judgment passed in the said FAO and it would indicate that, as the parties have agreed to subject their disputes for arbitration, all the contentions of both sides were left open, to have an adjudication of the said disputes through an Arbitrator. Annexure-13 is the Arbitration agreement executed between the parties. However, it is evident from Annexure-14 to Annexure-17 that as the 2[nd] respondent expressed his lack of faith on one of the Arbitrators appointed upon mutual consent, Arbitration Tribunal ultimately terminated the proceedings by withdrawing themselves from the Arbitration. In short, Arbitration of the dispute did not take place. Annexure-19 complaint was submitted by the petitioner thereafter before the Director General of Police, Thiruvananthapuram in the year 2018 and by that time, the father of the parties expired. It is evident from the endorsement in Annexure-19 that the same was forwarded to Assistant Commissioner of Police, Ernakulam for conducting an inquiry and the documents revealed that a preliminary inquiry was conducted by the Assistant Commissioner of Police. Later, it was decided to conduct an investigation in the Crl.M.C.No.2542/2018 9 matter and Annexure-1 FIR was registered in connection with the same. 6. The learned counsel for the petitioner points out that the sequence of events and the documents as referred above would indicate that the dispute between the parties are pure civil in nature and no criminal offences can be attracted in respect of the same. It is also his case that as far as the execution of the documents are concerned, those were done on the basis of Power of Attorney executed by the 2[nd] respondent and the said Power of Attorney was clandestinely canceled by the 2[nd] respondent by registering a deed of cancellation at a different Sub Registrar Office. Intimation in this regard was received by executant thereof, who is the father of the petitioner, only after the execution of the relevant documents. 7. As regard to the allegation of affixing thump impression on the aforesaid deeds, it is submitted by the learned counsel for the petitioner that his father has affixed the same on the basis of authorization, which he received on account of the Power of Attorney and it was done in his representative capacity. It was also pointed out that, even if it amounts to an allegation so as to constitute the offence, that is an act committed by the father of the Crl.M.C.No.2542/2018 10 petitioner and the petitioner and the other accused cannot be roped in for any criminal offence in connection with the execution thereof. This contention was raised by the learned counsel by specifically referring to the contents of an earlier complaint submitted by the 2[nd] respondent which are revealed from the documents produced in this Crl.M.C. The learned counsel also placed reliance upon the judgment in **Gian Sing v. State of Punjab [2012 (4) KLT] 108 (SC)], Vineeth Kumar and Others v. State of Uttar Pradesh and Another [(2017) 13 SCC 369]** and **Ahmad Ali Quraishi And Another v. State of Uttar Pradesh and Another [2020 (13) SCC 435].** 8. The learned counsel for the 2[nd] respondent opposed the contentions put forward by the learned counsel for the petitioner. According to the learned counsel for the 2[nd] respondent Annexure19 and the First Information Statement which forms part of Annexure-1 contains specific allegations indicating the involvement of petitioner and the other accused in the crime. He also submitted that in addition to the allegations regarding the execution of the documents on the strength of Power of Attorney by the father of the 2[nd] respondent, he has raised certain allegations with regard to other malpractices as well. One of such allegation is that, the 2[nd] respondent was a share holder of Moolans International Exim Crl.M.C.No.2542/2018 11 Pvt.Ltd. and he was holding shares numbering to 26,308 in his name and 32,217 in the name of his wife. Though he was a Director of the said company he later resigned from the directorship, but the shares were not transferred in favour of any other person. However, the accused had affected transfer of the aforesaid shares, by creating false documents and using the same as genuine documents they communicated the sale of the shares before the Registrar of Companies. Another allegation is that, the petitioner along with accused persons started a charitable trust namely Vijay Charitable Trust. But later he was ousted from the said trust by accused persons by fabricating certain documents. In addition to the above, he also pointed out certain allegations regarding the agreements entered into between the parties for transferring certain shares in the property jointly held by them and the removal of machinery in a factory which was agreed to be transferred in his favour. It is pointed out that the aforesaid acts were done by the accused in this case. In Annexure-1 FIS, in addition to the above allegations it is also stated that, the petitioner herein along with the son of the 2[nd] respondent formed a company namely L & P Oil Pvt. Ltd. offering returns from the same, but later, certain documents were created in respect of the said company by forging the Crl.M.C.No.2542/2018 12 signature of the son of the 2[nd] respondent. On the basis of the above allegations, the learned counsel for the 2[nd] respondent contends that the averments contained therein disclose cognizable offences and this is a matter to be investigated. The learned counsel also placed reliance upon judgment in **Kaptan Singh v. State of Uttar Pradesh and others [(2021) 9 SCC 35],** wherein the circumstances in which interference can be made by the High Court in an FIR are mentioned. Thus he seeks for dismissal of the Crl.M.C. 9. The only question that arises here is as to whether the petitioner is successful in making out a case for invoking the powers of this Court under Section 482 Cr.P.C. It is to be noted that the prayer sought for is to quash an FIR. Learned counsel contends that the dispute which forms the cause of action of Annexure-1 FIR is basically civil in nature between the family members. It is also submitted by him that documents produced by him would indicate a series of transactions which show the manner in which the dispute escalated and the steps taken by the accused persons for settling the matter by partitioning the properties and assets in between the parties. It was pointed out that only because of the non-cooperation on the part of the 2[nd] respondent the same was not materialized and Crl.M.C.No.2542/2018 13 the present complaint is submitted by the 2[nd] respondent only to pressurize and harass the petitioners in respect of the same. The learned counsel places reliance upon the observations made by Honourable Supreme Court in **Gian Sing's case.** 10. In paragraph No.57 of the said judgment it is observed by the Honourable Supreme Court that, criminal cases having civil flavour, stands on a different footing for the purpose of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. However, crucial aspect to be noticed with regard to **Gian Sing’s** case is that, the question considered by the Honourable Supreme Court in the said judgment was relating to the invocation of powers under Section 482 Cr.P.C. in the light of the settlement arrived at between the accused and the de facto complainant. In this case, such a scenario is not there. In **Vineeth Kumar's case** also the Honourable Supreme Court observed that when it is shown that the prosecution was maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him Crl.M.C.No.2542/2018 14 due to private and personal grudge, such powers can be invoked. It is true that if it is shown that if the dispute is civil in nature and the proceedings were instituted to wreak vengeance with mala fide intention the powers of this Court under Section 482 Cr.P.C. can be invoked. However, crucial question is as to whether such circumstances are in existence in this case or not. 12. As pointed out by the learned counsel for the respondent, the case is at the stage of FIR only and an investigation has to be conducted with respect to the allegations contained therein. It is true that considering the sequence of events as narrated by the learned counsel for the petitioner with reference to Annexure-3 to Annexure-19 predominant civil flavor of the dispute is evident. It is also a fact that the dispute commenced in the year 2010 between the members of the family and even now it is continuing, despite several measures of settlement between the parties in the presence of mediators. It is apparent that none of the terms and conditions could be implemented effectively. Therefore, it could be a case of civil nature as far as the registration of the documents as alleged by the 2[nd] respondent, on the strength of the Power of Attorney executed by him, are concerned. However, as pointed out by the learned counsel for the 2[nd] respondent Anneuxre-A19, the First Crl.M.C.No.2542/2018 15 Information Statement in Anneuxre-1 do contain certain allegations apart from the registration of the aforesaid documents as well. The same includes allegation of creation of false documents forging signature of the 2[nd] respondent as well as his son, for the purpose of transfer of shares, interest in a trust, the stakes in a company etc. Even if it is assumed that the registration of the documents based on the Power of Attorney executed by the 2[nd] respondent in favour of his father cannot be a reason to implicate the petitioner and other accused, still there are other allegations as mentioned above indicating cognizable offences. In **Kaptan Singh’s case** the Honourable Supreme Court observed that, while considering the application under Section 482 Cr.P.C. the High Court shall not enter into merits of the allegations in detail, as those are matters to be considered at the time of trial. In a recent decision rendered by this Court in **Jayaprakash T. v. State of Kerala and Another [2021 (5) KHC 679]** by relying upon the observations of Honourable Supreme Court in **Kaptan Sing** (supra), it was observed that, while examining the First Information Report for the purpose of invoking powers under Section 482 Cr.P.C., the allegations in the FIR only are required to be considered. The FIR is not an encyclopedia which must disclose all facts and details relating to the offence. Crl.M.C.No.2542/2018 16 The court should not go into the merits of the allegations in the FIR and the police shall be permitted to complete the investigation. When a prayer for quashing an FIR is made by the accused the court has to consider only the allegation raised to find out as to whether any cognizable offence is made out or not. Court is not required to consider merits of the allegations. In **Dineshbhai Chandubhai Patel v. State of Gujrat [2018 (3) SCC 104]** it was observed that in order to examine as to whether factual contentions of FIR disclose any cognizable offence or not, the High Court cannot act like investigation agency. 13. Thus, from the principles laid down by the Honourable Supreme Court, which was being consistently followed by this Court, it can be gathered that for the purpose of quashing an FIR, powers under Section 482 Cr.P.C can be invoked very sparingly with circumspection. In this case, contentions put forward by the learned counsel are matters worthy to be considered. But I am of the view that, on account of the limitation in the scope of inquiry under Section 482 Cr.P.C, I am unable to appreciate the same at this stage. In such circumstances, going by the principles laid down by the Honourable Supreme Court in this regard, this Court cannot go into the veracity and sustainability of the contentions put forward Crl.M.C.No.2542/2018 17 by the petitioner in this regard as it is a matter to be investigated by the police. In such circumstances, I am unable to interfere with the proceedings pursuant to Annexure-1 FIR. In the result, I am of the view that the contentions put forward by the petitioners as well as the 2[nd] respondent are matters to be investigated by the police. All the contentions are left open and the Crl.M.C. is dismissed without prejudice to any of their rights and contentions including the right of the petitioners to challenge the final report, if any, filed by the police after investigation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/4.2.22 Crl.M.C.No.2542/2018 18 ## _APPENDIX OF CRL.MC 2542/2018_ _PETITIONER ANNEXURES:_ - _ANNEXURE 1 THE CERTIFIED COPY OF THE FIR IN CRIME NO. 1001/2018 OF ANGAMALY POLICE STATION._ - _ANNEXURE 2 THE COPY OF THE DEATH CERTIFICATE OF 1ST ACCUSED._ - _ANNEXURE 3 THE TRUE COPY OF THE STATEMENT OF ACCOUNTS EVIDENCING THE WITHDRAWAL OF AMOUNTS FROM THE JOINT BUSINESS TO THE 2ND RESPONDENT PERSONAL ACCOUNT AT PUNJAB NATIONAL BANK IS OBTAINED._ - _ANNEXURE 4 THE TRUE COPY OF THE ABSTRACT OG VALUATION OF PROPERTIES PREPARED ON 5.4.2010._ - _ANNEXURE 5 THE TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING._ - _ANNEXURE 6 THE COPY OF THE AGREEMENT DATED 8.09.2010. ANNEXURE 7 THE TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY 2ND RESPODNENT IN FAVOUR OF DEVASSY ON 23.9.2010._ - _ANNEXURE 8 THE REPORT DATED 13.3.2012 FILED BY DISTRICT REGISRAR ERNAKULAM._ - _ANNEXURE 9 THE TRUE COPY OF THE AGREEMENT DATED 10.8.2012._ - _ANNEXURE 10 THE TRUE COPY OF THE AGREEMENT DATED 18.8.2012 BETWEEN THE PROMOTERS._ - _ANNEXURE 11 THE TRUE COPY OF THE IA 1682/2012 ON THE FILES OF HON'BLE SUB COURT NORTH PARAVUR._ - _ANNEXURE 12 TRUE COPY OF THE JUDGMENT IN FAO NO. 74/2014._ - _ANNEXURE 13 THE TRUE COPY OF THE ARBITRATION AGREEMENT DATED 7.1.2014._ Crl.M.C.No.2542/2018 19 _ANNEXURE 14 A TRUE COPY OF THE LETTER DAETD 8.12.2015 ISSUED BY 2ND RESPONDENT._ - _ANNEXURE 15 THE TRUE COPY OF THE SECOND RESPONDENT ALSO MOVED A PETIITON AS IA NO. 10/2015 SEEKING AN ORDER FOR THE REMOVAL OF ARBITRATORS._ - _ANNEXURE 16 TRUE COPY OF THE ORDER DATED 18.12.2015 PASSED BY ARIBITRAL TRIBUNAL IN ARB/SJS/1/2014._ - _ANNEXURE 17 THE TRUE COPY OF THE ORDER DATED 18.12.2015 PASSED UNDER THE SECTION 32(2) (C) OF THE ARBITRATION AND CONCILIATION AC._ - _ANNEXURE 18 THE TRUE COPY OF THE ORDER DATED 10.3.2016 IN OP(ARBITRATION) 676/2015._ - _ANNEXURE 19 THE TRUE COPY OF THE PETITION OBTAINED BY THE PETIITONER UNDER RTI ACT._ - _ANNEXURE 20 THE TRUE COPY OF THE STATEMENT. ANNEXURE 21 TRUE COPY OF THE PETITIONER HAD ALSO FILED A STATEMENT BEFORE ASSISTANT COMMISSIONER OF POLICE TO THE DISTRICT POLICE CHIEF ON 14.2.2018._ - _ANNEXURE 22 TRUE COPY OF THE ASSISTANT COMMISSIONER OF POLICE ERNAKULAM HAD FILED A REPORT ON 23.2.2018._ - _ANNEXURE 23 TRUE COPY OF THE PETIITONER AND HIS CLOSE RELATIVES HAD FILED A COMPLAINT BEFORE THE D.G.P OF POLICE DATED NIL._