Sathiabhama Moolayi D/O Narayanان v. Biju s/o Ouseph & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945** ## **CRL.MC NO. 8691 OF 2019** **CRIME NO.597/2014 OF Thaliparamba Police Station, Kannur AGAINST THE ORDER/JUDGMENT CC 1004/2018 OF JUDICIAL MAGISTRATE OF** ## **FIRST CLASS ,TALIPARAMBA** ## **PETITIONER/ACCUSED:** SATHIABHAMA MOOLAYI D/O.NARAYANAN, MOOLAYI HOUSE, KOLATHUVAYAL, P.O.ANCHAMPEEDIKA, KANNUR DISTRICT-670331. BY ADV P.M.PAREETH ## **RESPONDENTS/COMPLAINANT & STATE:** 1 BIJU S/O.OUSEPH, KARAKADAVIL VEETIL, CHALAKKUDY, KUTTIKAD P.O., THRISSUR DISTRICT-680724. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADV. SRI.N.L.BITTO - R1 SRI. HRITHWIK C.S., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.8691 of 2019 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.8691 of 2019** **---------------------------------------------Dated this the 28[th] day of November, 2023** ## **ORDER** Petitioner is the 3[rd] accused in C.C.No.1004/2018 on the file of the Judicial First Class Magistrate Court, Thaliparamba. The offence alleged against the petitioner and others are under Section 406, 420 & 463 IPC. The case was registered based on a private complaint filed before the jurisdictional court which was forwarded under Section 156(3) Cr.P.C. Annexure - A1 is the private complaint. Based on Annexure - A1, the Police registered the case and filed a final report as evident by Annexure - A2. It is the case of the petitioner that Garden Green Realtors Pvt. Ltd. came into existence on 05.01.2011. But according to the petitioner, even though she was a Director of the company, she ceased to be a Director of the Crl.M.C.No.8691 of 2019 3 company w.e.f. 16.03.2012 as evident by Annexure - A3 which is the copy of the Form 32 submitted before the Registrar of Companies. It is also the case of the petitioner that, 40,000/- shares of the company held by the petitioner was transferred to the 1[st] respondent on 16.03.2012 as evident by Annexure - A4 annual return. It is also the case of the petitioner that, after filing the private complaint, the 1[st] respondent in his capacity as Power of Attorney holder, has entered into an agreement with the 1[st] accused settling the matter between the 1[st] respondent and the 1[st] accused as evident by Annexure - A5. According to the petitioner, even if the entire allegations in Annexure – A2 are accepted in toto, no offence is made out. Hence this Crl.M.C is filed. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. The main contention of the petitioner is that, even if the entire allegations in Annexure – A2 final report Crl.M.C.No.8691 of 2019 4 are accepted, no offence is made out against the petitioner. This Court perused Annexure – A2 final report. It will be better to extract the relevant portion of Annexure – A2 final report: ## “Charge u/s 406, 420, 463 IPC മമമൊറമൊഴ അഅംശഅം ധർമ്മശമൊല എന്ന സ്ഥലതത, 1-)0 പ്രതത മമൊനനേജതങത ഡയറക്ടറഅം 2 മുതൽ 6 വമരെ പ്രതതകൾ ഡയറക്ടർമമൊരുമമൊയുള ഗമൊർഡൻ ഗഗൻ റതയമൊൽനട്ടേഴത എന്ന സ്ഥമൊപനേതതമന്റെ ഗമൊർഡൻ വമൊലത നഹമൊഅംസതമന്റെ നപ്രമൊമജക്ടതൽമപ്പെട്ടേ 9 ഹഹൗസത നപമൊട്ടുകൾ ഒരു നപമൊട്ടേതനേത 5 1/2 ലകഅം രൂപകഅം, കമ്പനേതയുമടെ മഷെയറഅം നേൽകമൊമമന്നത പറഞ വതശശ്വസതപ്പെതചത 8/01/12 തഗയ്യതത 6 ലകഅം രൂപയുഅം 5/3/12 തഗയ്യതത 30 ലകഅം രൂപയുഅം 29/5/12 തഗയ്യതത 24 ലകഅം രൂപയുഅം ആമക 60 ലകഅം രൂപ, 1, 3 - സമൊകതകളതൽ നേതനഅം പ്രതതകൾ കകപ്പെറത, 3 - ഹഹൗസത നപമൊട്ടുകൾ മമൊതഅം നേൽകത, ചതത മചയഅം, ഹഹൗസത നപമൊട്ടേതൽ മകട്ടേതടെഅം നേതർമ്മതചത നേൽകുന്നതതമന്റെ ആവശശ്യതതനലകത എന്നത പറഞ ബമൊങത മുദ്രപ്പെതതതൽ ഒപ്പെതട്ടു വമൊങത ആയതതൽ പ്രതതകൾ നേൽകതയ 3 - ഹഹൗസത നപമൊട്ടുകളുമടെ വസ്തുവതൽപ്പെനേ കരെമൊർ കൃതതമമമൊയത ഉണമൊകകയുഅം മചയത, കുറകരെമമൊയ വതശശ്വമൊസവഞ്ചനേയുഅം മചയതമൊയത മവളതവമൊയതതനേമൊൽ പ്രതതകൾ ഇ.ശത.നേഗ. 406, 420, 463, വകുപ്പുകൾ പ്രകമൊരെഅം ശതകമൊർഹമമൊയ കുറഅം മചയതരെതകന.” ## 4. A bare perusal of the above final report would Crl.M.C.No.8691 of 2019 5 show that there is only vague allegation against the petitioner who is the 3[rd] accused. A perusal of Annexure – A3 would show that the petitioner is not associated with the company with effect from 16.03.2012. This Court also perused Annexure – A1 complaint in which also there is no specific allegation against the petitioner who is the 3[rd] accused except the vague allegation that, all the accused committed the offence. In **Uma Shankar Gopalika v. State of Bihar and Another** [2005 KHC 1713] the Apex Court considered the ingredients to constitute the offence under Section 420 IPC. It will be better to extract the relevant portion of the above judgment: “6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under S.420/120B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs 4,20,000, they would pay Crl.M.C.No.8691 of 2019 6 a sum of Rs 2,60,000 to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs 4,20,000. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under S.420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under S.420 or S.120B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. Crl.M.C.No.8691 of 2019 7 In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under S.482 CrPC which it has erroneously refused. 8. It appears that though the complaint was filed against three persons, one of whom Vijay Shanker has died as stated above, there is another accused Gopalika Finance Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of our conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well.” 5. Similarly in **Thermax Ltd.(M/s.) and Others v.** **K.M. Johny and Others** [2011 KHC 4892], similar issue was considered. The relevant portion of the above Crl.M.C.No.8691 of 2019 8 ## judgment is extracted hereunder: “20. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant - Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex - Chairperson, Ex - Directors and Senior Managerial Personnel of appellant No.1 - Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role. 21. Apart from the fact that the complaint lacks necessary ingredients of S.405, S.406, S.420 read with S.34 IPC, it is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant - Company. 22. It is useful to demonstrate certain examples, namely, S.141 of the Negotiable Instruments Act, 1881 which specifically provides that if the person committing an offence under S.138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be Crl.M.C.No.8691 of 2019 9 proceeded against and punished accordingly. Likewise, S.32 of the Industrial Disputes Act, 1947 provides that where a person committing an offence under this Act is a company, or other body corporate, or an association of persons, every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. We have already noted that the offence alleged in the criminal complaint filed by respondent No.1 is under S.405 and S.420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than appellant No.1 - Company can be prosecuted under the alleged complaint.” 6. In the light of the above principles and also after going through the final report, I am of the considered opinion that the petitioner who is the 3[rd] accused has not committed any offence as alleged by the prosecution. But the prosecution against the other accused is to be decided separately. Simply because the case against the petitioner herein is quashed, the other accused will not get any Crl.M.C.No.8691 of 2019 10 benefit out of the same. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner alone in C.C.No.1004/2018 on the file of the Judicial First Class Magistrate Court, Thaliparamba arising from Crime No.597/2014 of Taliparamba Police Station are quashed. Sd/- nvj/DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.8691 of 2019 11 ## **APPENDIX OF CRL.MC 8691/2019** |PETITIONER ANNEXURES|PETITIONER ANNEXURES| |---|---| |ANNEXURE A1|A TRUE PHOTO COPY OF THE PRIVATE| ||COMPLAINT CMP NO.3291/2014 DATED| ||28.04.2014.| |ANNEXURE A2|A TRUE PHOTO COPY OF THE FINAL REPORT| ||AND CHARGE IN CRIME NO.597/14 DATED| ||28.08.18.| |ANNEXURE A3|A TRUE PHOTO COPY OF THE FORM 32| ||SUBMITTED BEFORE THE REGISTRAR OF| ||COMPANIES.| |ANNEXURE A4|A TRUE PHOTO COPY OF THE ANNUAL RETURN| ||ENDING 31.03.2012.| |ANNEXURE A5|A TRUE PHOTO COPY OF THE AGREEMENT| ||DATED 04.08.2016 ENTERED INTO BETWEEN| ||THE COMPANY AND THE 1ST RESPONDENT.| |RESPONDENTS|EXHIBITS<br>: NIL| ||//TRUE COPY//<br>PA TO JUDGE|