Sudeep Karakkat v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **W.P.(C) No.4326 OF 2021(M)** ## **PETITIONER/S:** **SUDEEP KARAKKAT, AGED 47 YEARS, S/O. PADMANABHAN, PURAVA ETERNITY FLAT NO.705, ATHANI, KAKKANAD, KOCHI-682030 (FROM KARAKKAT VEEDU, CHEMMANUR P.O., KANNIPAYYUR, THRISSUR680517).** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/S:** **1 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHACAUD P.O., THIRUVANANTHAPURAM-695014.** - **2 THE CITY POLICE COMMISSIONER, KOCHI CITY, KOCHI-682011.** **3 THE ASSISTANT COMMISSIONER OF POLICE, THRIKAKKARA P.O., KOCHI-682021.** - **4 THE STATION HOUSE OFFICER, THRIKAKKARA POLICE STATION, THRIKKAKARA P.O., KOCHI-682021.** - **5 SRI. LAIJITH V.L., S/O. V.R.LALAPPAN, VALIYATHARAYIL, PAVUMBA, THAZHAVA P.O., KARUNAGAPPALLY, KOLLAM-690523.** **R5 BY ADV. SHRI.P.JAYABAL MENON R5 BY ADV. SMT.REKHA AGARWAL** ## **OTHER PRESENT:** ## **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.4326 OF 2021(M) 2 ## **JUDGMENT** The petitioner, who is a film and serial producer, residing at Kakkanad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to afford adequate and effective police protection to the life of the petitioner and his family against the threat from the 5[th] respondent and his men. The petitioner has also sought for a declaration that he is entitled to get police protection for his life from respondents 1 to 4, against the threat from the 5[th] respondent and his men. Going by the averments in the writ petition, the 5[th] respondent entered into an agreement with the petitioner for production of a serial by name “Sumangalybava” with a total estimate of Rs.1.12 Crores. As per that agreement, the petitioner and the 5[th] respondent have to invest 50% of the said amount. Though the 5[th] respondent invested a total sum of Rs.45 lakhs on different occasions, he failed to invest the balance amount of Rs.11 lakhs. The petitioner invested Rs.67 lakhs and continued the project. The project suffered a loss to the tune of Rs.42 lakhs. In the writ petition, it is alleged that the 5[th] respondent and his men are threatening the petitioner by alleging that the accounts maintained in terms of the W.P.(C) No.4326 OF 2021(M) 3 agreement are incorrect. The 5[th] respondent forcibly obtained blank cheque leaf for Rs.56 lakhs from the account maintained by the petitioner at ICICI Bank, Ravipuram Branch, without any consideration. The petitioner on different occasions returned back a sum of Rs.35 lakhs to the 5[th] respondent, through his account maintained in the State Bank of India, Vallikkunnam Branch. Despite the receipt of the said amount, the 5[th] respondent is threatening the petitioner over phone and the petitioner is asked to return back the balance amount on or before 31.01.2021. Alleging that the 5[th] respondent threatened the petitioner with dare consequences, unless he repays the balance amount with interest, before 15.02.2021, the petitioner submitted Ext.P3 complaint dated 09.02.2021 before the 1[st] respondent Station House Officer, Thrikkakara Police Station, with copy to the 2[nd] respondent Police Commissioner, Kochi City. Alleging inaction on the part of respondents 2 to 4 in discharge of their statutory duty to grant adequate and effective police protection to the life of the petitioner and his family, the petitioner is before this Court in this writ petition seeking the aforesaid reliefs. 2. On 19.02.2021, when this writ petition came up for admission, the learned Government Pleader took notice on W.P.(C) No.4326 OF 2021(M) 4 admission for respondents 1 to 4. Urgent notice on admission by speed post was ordered to 5[th] respondent, returnable within three weeks. The learned Government Pleader was directed to file statement of the 4[th] respondent Station House Officer. 3. The 5th respondent has filed counter affidavit, opposing the reliefs sought for in this writ petition. Paragraphs 3 to 5 of that counter affidavit read thus: “3. No agreement was entered into by the petitioner and myself for production of the serial “Sumangalybava”, as alleged in the writ petition. As stated above, the advancement of money by me to the petitioner was purely a loan transaction. At any rate, the petitioner has not produced any such agreement before this Hon'ble Court. I was not supposed to invest 50% of the project, as alleged. Admittedly, I paid Rs.45,00,000/- to the petitioner. Neither I have resorted to any steps to jeopardize the project of the petitioner nor threatened the petitioner, in whatsoever manner, as alleged. The petitioner is inventing these stories to wriggle out from the liability due to me. 4. The petitioner approached me seeking financial assistance for his project, “Sumangalybava”, a tele-serial broadcast in the channel 'Zee Kerala', and , accordingly, I paid Rs. 45 lakhs to the respondent on various occasions from 16.06.2019 till 17.09.2019. The terms and conditions with respect to the repayment of the loan, advanced as above, was reduced into a written agreement on 05.02.2020. The petitioner did not repay the loan amount in full. As on 28.02.2021, Rs.25,57,425/- is due from the W.P.(C) No.4326 OF 2021(M) 5 petitioner to me. When I demanded the petitioner for the money, which is due to me, he refused to pay and instead have rushed to this Hon'ble Court by filing this writ petition citing lies and distorted facts. 5. At this juncture, it may be worthwhile to point out before this Hon'ble Court that I have initiated proceedings to recover the amount due to me from the petitioner by filing C.M.A.(Arb) 148 of 2021 before the Hon'ble Commercial Court, Ernakulam. True copy of the C.M.A.(Arb) 148 of 2021, bereft of the interlocutory application, attachment schedule and the documents, is produced herewith and marked as Ext.R5(a).” 4. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent. 5. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for an order for police protection, as sought for in this writ petition, which is one based on Ext.P3 complaint dated 09.02.2021 filed before the 4[th] respondent Station House Officer. ## 6. In **Bharat Singh v. State of Haryana [(1988) 4 SCC** **534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition W.P.(C) No.4326 OF 2021(M) 6 and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 7. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the W.P.(C) No.4326 OF 2021(M) 7 question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 8. In **St.George Tabore Church and others v. State of Kerala and others [2021 (1) KHC SN 1]** this Court held that, in order to seek police protection under Article 226 of the Constitution of India, the petitioner in a writ petition filed under Article 226 of the Constitution of India has to first approach the concerned Station House Officer with a proper complaint against those who are causing threat to the life and/or the property of the petitioner. Since a writ of mandamus can be granted only in a case W.P.(C) No.4326 OF 2021(M) 8 where there is a failure on the part of that officer concerned to discharge the statutory obligation, in the complaint filed before the concerned Station House Officer, which is foundation upon which a writ petition seeking police protection has been built, the petitioner has to disclose his legal right to compel performance of a statutory duty cast upon that authority. The said complaint should contain necessary pleadings. In case there is any failure on the part of the officer concerned in discharging the statutory duty or obligation, the petitioner can approach this Court in a writ petition filed under Article 226 of the Constitution of India, seeking appropriate reliefs, in which the State of Kerala, the officer concerned and also those who are causing threat to the life and/or the property of the petitioner, as alleged in the said complaint, are to be arrayed as respondents. 9. In the instant case, though it is averred in the writ petition that the petitioner and the 5[th] respondent had entered into an agreement for the production of the serial “Sumangalybava”, for a total estimate of Rs.1.12 Crores, as per which the 5[th] respondent has to invest a sum of Rs.56 lakhs, the petitioner has not chosen to produce a copy of the so called agreement. Admittedly, the 5[th] respondent had invested a sum of Rs.45 lakhs. W.P.(C) No.4326 OF 2021(M) 9 In the writ petition, it is alleged that the 5[th] respondent has failed to invest the balance amount of Rs.11 lakhs in terms of the said agreement. 10. On the other hand, the specific stand taken in the counter affidavit filed by the 5[th] respondent is that he had advanced a sum of Rs.45 lakhs to the petitioner, which is purely a loan transaction. The 5[th] respondent had not entered into an agreement with the petitioner for the production of the aforesaid serial, as alleged in the writ petition. The terms and conditions with respect to repayment of loan, as advanced as above, was reduced into a written agreement, on 05.02.2020. As on 28.02.2021, an amount of Rs.25,57,425/- is due to the 5[th] respondent, from the petitioner in the said loan transaction. The 5[th] respondent approached the Sub Court, Ernakulam in C.M.A. (Arb)No.148 of 2021, under Section 9 of the Arbitration and Conciliation Act, 1996, seeking attachment before judgment. The original agreement dated 05.02.2020 entered into between the petitioner and the 5[th] respondent has already been produced before the Sub Court as document No.1. 11. Alleging threat from the side of the 5[th] respondent and his men, the petitioner moved Ext.P3 complaint dated 09.02.2021 W.P.(C) No.4326 OF 2021(M) 10 before the 4[th] respondent Station House Officer, which contains only vague allegations. No specific instances of any threat from the side of the 5[th] respondent or his supporters to the life of the petitioner or his family members is pointed out in Ext.P3 complaint. The dates on which the 5[th] respondent or his supporters alleged to have threatened the petitioner with dare consequences is not mentioned in Ext.P3 complaint. 12. Viewed in the light of the law laid down in the decisions referred to supra, the petitioner has not made out a case for police protection to the life of the petitioner and his family members, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 13. In the result, this writ petition fails and the same is accordingly dismissed. No order as to cost. **Sd/ANIL K. NARENDRAN JUDGE** MIN W.P.(C) No.4326 OF 2021(M) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE AADHAAR CARD OF THE PETITIONER** **EXHIBIT P2 THE TRUE COPY OF THE LEASE AGREEMENT OF THE FLAT EXECUTED BETWEEN THE LESSER AND THE LESSEE, THE PETITIONER DATED 15/08/2020.** **EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT DATED 09/02/2021 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT AND RESPONDENTS 2 AND 3 AND ITS RECEIPT NO.24963/2021 DATED 14/02/2021 ISSUED BY THE 4TH RESPONDENT.**