T.A. Sundar Menon and M.C.S Menon v. State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 CRL.REV.PET NO. 862 OF 2018 [AGAINST THE ORDER DATED 11.04.2018 PASSED IN CRL.M.P.NO.1177/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR] ## REVISION PETITIONER/ACCUSED: 1 T.A.SUNDAR MENON AGED 56 YEARS, S/O. M.C.S MENON, SWATHI, DIWAN NARAYANA MENON ROAD, CHEMBUKKAVU, THRISSUR. *2 M.C.S MENON ( DIED) AGED 73 YEARS, KRISHNAKATAKSHAM,PARAKKOT LANE, THRISSUR BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.M.PREMCHAND ## RESPONDENTS/STATE AND COMPLAINANTS: 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. *2 C.K MENON (DIED) AGED 68 YEARS, S/O. C.K KATHIYANI AMMA, CHERIL HOUSE, PARAKOT LANE, PATTURAIKAL,THRISSUR. 3 JAYASREE, W/O KRISHNA MENON 'SOUPARNIKA' VALANJAMBALAM, RAVIPURAM ROAD, KOCHI - 682 016 4 AJANA, D/O KRISHNA MENON 'SOUPARNIKA' VALANJAMBALAM, RAVIPURAM ROAD, KOCHI - 682 016 5 SREE RANJINI, D/O KRISHNA MENON 'SOUPARNIKA' VALANJAMBALAM, RAVIPURAM ROAD, KOCHI - 682 016 6 JAYAKRISHNAN, S/O KRISHNA MENON 'SOUPARNIKA' VALANJAMBALAM, RAVIPURAM ROAD, KOCHI - 682 016 CRL.RP No.862 /2018 2 (ADDL. RESPONDENTS R3 TO R6 ARE IMPLEADED AS PER ORDER DATED 15.11.2019 IN CRL. M.A 2/2019) R3 TO R6 BY ADVS. K. RAMAKUMAR (SR.), SRI.T.RAMPRASAD UNNI SMT.ANUPAMA SUBRAMANIAN SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SRI.K.R.SRIPATHI ## OTHER PRESENT: R1 BY ADV SEENA C., PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.07.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING: CRL.RP No.862 /2018 3 ## O R D E R The petitioners are the accused Nos.1 and 2 in Crl.M.P.No.1177/2017 on the file of the Chief Judicial Magistrate Court, Thrissur. This Revision Petition is submitted challenging the order dated 11.4.2018 passed by the learned Magistrate in the aforesaid Crl.M.P., which is a private complaint submitted by the 2[nd] respondent against the refer report submitted by the Thrissur East Police Station. As per the aforesaid order, the learned Magistrate has taken cognizance of the complaint against the petitioners for the offences punishable under Sections 406,420,417 and 418 of the Indian Penal Code (IPC). Even though the offence under Section 120B of IPC was also alleged in the complaint, it was found that, there was no ground for proceeding against the accused for said offence and hence the complaint is dismissed in CRL.RP No.862 /2018 4 respect of the said offence. The aforesaid order is under challenge in this Crl.R.P. 2. During the pendency of this Crl.R.P., the 2[nd] respondent, who is the complainant, passed away and accordingly, additional respondents 3 to 6 were impleaded who are the legal heirs of the deceased 2[nd] respondent. 3. The 2[nd] petitioner also died during the pendency of this Crl.R.P., and hence proceedings against him now stand abated. 4. The complaint submitted by the deceased 2[nd] respondent was with the following allegations: The 1[st] petitioner and the deceased 2[nd] respondent were partners of a firm, “Behzad Transport Company”, which was doing business in Sharjah and UAE. The aforesaid business was started by the deceased 2[nd] respondent, and later, the 1[st] petitioner was inducted into the said Company as a partner. Later, as there was some difference of opinion between the parties, a discussion was conducted CRL.RP No.862 /2018 5 between the 1[st] petitioner and the 2[nd] respondent to find an amicable solution to the management of the Dubai branch of the Company. Accordingly, for settling the dispute, the 1[st] petitioner promised to buy the shares of the 2[nd] respondent in the business, in consideration of adequate compensation for relinquishing his shares in the business in UAE. It is further alleged that, based on the same, the 2[nd] respondent relinquished his shares in return for monetary compensation, which was to be determined subsequently after the finalization of the accounts. Later, based on the settlement of accounts, the amount to be paid by the 1[st] petitioner to the 2[nd] respondent was determined as Rs.9,81,63,526/- to which the 1[st] petitioner agreed to pay. As part of the same, a further negotiation was conducted at the residence of the 1[st] petitioner on 3.9.2006, where the first petitioner, the wife of the 2[nd] petitioner/2[nd] accused and the son of the 2[nd] respondent and one ## CRL.RP No.862 /2018 6 Satheesh were present along with the 1[st] petitioner as well as the 2[nd] respondent. In the discussion so held, the 1[st] petitioner pleaded financial difficulty and promised to pay the amount in Indian rupees with 8% interest. However, despite the aforesaid undertaking, the amount was not paid, and when the 2nd respondent demanded the abovementioned amount, the accused persons threatened him. Initially, a complaint was submitted before the Hon’ble Home Minister which was forwarded to the Commissioner of Police. Ultimately, it resulted in the registration of Crime No.321/2016 by the Thrissur East Police Station. Annexure-I is the copy of the complaint submitted by the 2[nd] respondent, and Annexure-III is the F.I.R. registered based on the same. 5. After conducting an investigation, the Police submitted Annexure-IV final report/Refer report finding that the transactions between the parties are civil in nature and no cognizable CRL.RP No.862 /2018 7 offence was revealed during the investigation. Upon getting notice of such refer report, the deceased 2[nd] respondent submitted the present complaint which is numbered as Crl.M.P.No.1177/2017 before the Chief Judicial Magistrate Court, Thrissur, wherein the order impugned in this Crl.RP was passed. The aforesaid order was passed after recording the statements of the 2[nd] respondent/complainant and also four witnesses. This Crl.R.P. is filed challenging the aforesaid order. 6. Heard Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioners, Sri.K.Ramakumar, the learned Senior counsel appearing for the respondents 3 to 6 and Smt.Seena C., the learned Public Prosecutor for the State. 7. The contention raised by the learned Senior Counsel for the petitioners is that, the learned Magistrate, while taking cognizance of the CRL.RP No.862 /2018 8 offences, did not take into consideration the findings in Annexure-IV refer report submitted by the Police and instead simply proceeded to consider the complaint submitted by the 2[nd] respondent and also the statement of the witnesses produced by the complainant. The learned Senior Counsel for the petitioners brought to my attention Annexures-V and VI documents which are executed between the parties as part of the relinquishment of share of the 2[nd] respondent in the Company, which is the subject matter of this case. Both the said documents are executed at Sharja. Annexure-V is a document evidencing the sale and transfer of shares of the 2[nd] respondent in the Company named Behzad Diesal Trading LL.C. Though the aforesaid document is executed in Arabic before the Sharjah Court of First Instance, the official English translation of the same is produced as Annexure-V(a) . As per the terms and conditions in Annexure V(a) , the entire shares of CRL.RP No.862 /2018 9 the 2[nd] respondent, which comes to 25% of the total shares in the Company, have been assigned to the 1[st] petitioner for a consideration of Rs.75,000 AED. Annexure-VI is the document by which the transfer of shares consequent to Annexure-V, which is dated 7/11/2007, was given effect to, and the name of the Company was also changed to “Sun Diesel Trading LL.C”. Annexure-VI document was also executed in Arabic and Annexure-VI(a) is the official English translation of the said document. The specific case of the learned counsel for the petitioners is that these documents were specifically referred to in Annexure-IV final report submitted by the Police, and it forms the basis of the conclusion arrived at by the Police as to the civil nature of the transaction, but the aforesaid aspects are not seen taken into consideration by the learned Magistrate while taking cognizance. Therefore, it was pointed out that, the order of taking cognizance is bad and CRL.RP No.862 /2018 10 not legally sustainable. It is also submitted that, as the case is civil in nature, no cognizable offences are made out, and hence no cognizance ought to have been taken by the learned Magistrate. The reliance was also placed on the judgments in Mahindra and Mahindra Financial Services Ltd. and Another v. Rajiv Dubey [(2009)1 SCC 706], Vijayasarathy R.K. (Prof.) and Another v. Sudhaseetharam and Another [2019(3)SCALE 563], Anil Mahajan v. Bhor Industries Ltd. and Another [(2005)10 SCC 228] and Parameswaran Nair v. Surendran and Another [2009(1)KLT 794] . 8. On the other hand, the learned Senior Counsel appearing for the respondents 3 to 6 would seriously oppose the aforesaid contentions. A CRL.RP No.862 /2018 11 preliminary objection was also raised as to the maintainability of the Revision Petition on the ground that, the order of taking cognizance is an interlocutory order and hence it is beyond the jurisdiction vested upon the Revisional Court as contemplated under Sections 397 and 401 of Cr.PC. It was also contended that at the time of taking cognizance, the Magistrate could consider only the materials placed along with the complaint and the contents thereof. No documents produced by the defence can be taken into consideration. If the learned Magistrate is satisfied after perusal of the contents of the complaint and the materials produced along with the same, he can conduct an inquiry and record the statements of the witnesses. In this case, apart from the statements of the 2[nd] respondent/complainant, the statements of four witnesses were also recorded by the learned Magistrate. After appreciating all the relevant aspects, the learned Magistrate came to a CRL.RP No.862 /2018 12 specific conclusion that the offences under Sections 406,420,417 and 418 of IPC were made out, and cognizance was taken. The learned Senior Counsel pointed out that, the learned Magistrate did not take cognizance of the offence under Section 120B of IPC, and according to him, this indicates that there was application of mind on the part of the learned Magistrate while considering the same. According to him, no interference is warranted in the order passed by the learned Magistrate. Reliance was also placed on XYZ v. State of Gujarat and Another [(2019)10 SCC 337] and Nandakumar T.P. v. Central Bureau of Investigation, Kochi and Others [2016(3) KLT 11] . 9. Since a preliminary objection was raised by the respondents 3 to 6 in the form of a written objection as to the maintainability of the Revision Petition, I deem it appropriate to answer the aforesaid question first. CRL.RP No.862 /2018 13 10. The objection raised by the learned Senior Counsel for the respondents 3 to 6 is that, the order of taking cognizance is an interlocutory order, and hence it is not revisable under Sections 397 and 401 of Cr.PC. In response to the same, the learned Senior Counsel for the petitioners brought my attention to the judgment passed by this Court in Crl.R.P.No.2167/2005 dated 28.6.2018 where the said question was elaborately considered. In the said judgment, after referring to various decisions rendered by the Hon’ble Supreme Court including the judgments in Madhu Limaye v. State of Maharashtra [AIR 1978 SC 47] and Girish Kumar Suneja v. Central Bureau of Investigation [AIR 2017 SC 3620] and Asian Resurfacing of Road Agency v. Central Bureau of Investigation [(2018) 16 SCC 299], this Court held that, a Revision Petition would be maintainable against an order of taking cognizance and issuing summons to the accused persons. In Girish Kumar CRL.RP No.862 /2018 14 Suneja’s case (supra), the Hon’ble Supreme Court observed that, an order taking cognizance is an intermediate order. An intermediate order is explained as an order which is interlocutory in nature but when reversed, it will have the effect of terminating the proceedings and thereby resulting in a final order. In this case, the order passed is to take cognizance of certain offences and to issue summons to the accused persons. Therefore, it is an order of interlocutory nature in its simple form, however, if the order is reversed, it will result in the termination of proceedings pursuant to the aforesaid complaint and hence it would become a final order. Therefore, as explained by the Hon’ble Supreme Court in Girish Kumar Suneja’s case (supra), this is an intermediate order and the restrictions under Section 397 of Cr.PC is only against an interlocutory order which is distinct from intermediate order. Therefore, I ## CRL.RP No.862 /2018 15 find that in the light of the principles laid down by the Hon’ble Supreme Court, the Revision Petition is maintainable. 11. The next contention is regarding the impropriety in the order of the learned Magistrate in taking cognizance. It is a fact that, the allegations raised by the 2[nd] respondent in his complaint were investigated by the police and the final report was submitted, after arriving at the conclusion that since the dispute is civil in nature, no prosecution is warranted. As pointed out by the learned Senior Counsel appearing for the petitioners, while referring the aforesaid case, the police are seen to have gone into all the details of the transactions. One of the crucial aspects which led the Police to arrive at a conclusion was that the parties, i.e. the deceased 1[st] petitioner and the deceased 2[nd] respondent, arrived at a settlement which resulted in the transfer of shares of the 2[nd] respondent in CRL.RP No.862 /2018 16 favour of the 1[st] petitioner as per Annexure-V document which is dated 7.11.2007. In Annexure-IV final report, the Investigating Officer specifically took note of the fact that, the 2nd respondent/complainant himself produced Annexure-V contract of sale and Annexure-VI share assignment agreement. It was also observed that, as the said documents were executed in a foreign country, they have taken steps to obtain a letter rogatory to ensure the genuineness of the same. But during the said process, the aforesaid documents were also produced by the 1st petitioner to substantiate his claim. Since both the parties were relying upon the aforementioned documents to prove their contentions, the proceedings to obtain a letter of rogatory were not pursued, as the genuineness of the said documents were admitted by both the parties. The aforesaid documents played a crucial role in forming an opinion by the Police as to the civil nature of the transactions. The crucial CRL.RP No.862 /2018 17 aspect to be noticed in this regard is that the aforesaid document is dated 7.11.2007, whereas the cause of action stated in the complaint for initiating the prosecution is claimed to have occurred on 3.9.2006, where a discussion was held at the residence of the 1[st] petitioner and the 1[st] petitioner/1[st] accused had agreed to pay the amount payable to the 2[nd] respondent. Therefore, it was found by the Police that since Annexures-V and VI documents were executed after about 14 months of the discussion claimed to have been made between the parties, it is possible to conclude that, Annexures-V and Annexure-VI are the culmination of the aforesaid settlement. 12. When coming back to the impugned order passed by the learned Magistrate, it can be seen that the aforesaid aspects are not seen considered by the learned Magistrate. Apparently, the impugned order refers to only the averments in the complaint, materials placed on record along with CRL.RP No.862 /2018 18 the complaint and also the statements of witnesses. One of the crucial aspects to be noticed in this regard is that, even though it is discernible from the final report submitted by the Police that Annexures-V and Annexure-VI documents were relied upon by the complainant during the course of investigation of the said case, the averments regarding such documents is absent in the present complaint which is conspicuous in nature. The said documents are also not seen produced by the 2[nd] respondent along with the complaint. Therefore, it is evident that the learned Magistrate did not consider the applicability of the said documents and the impact that they can make on the case of the complainant. 13. The learned counsel appearing for respondents 3 to 6 have contended explicitly that, at the time of taking cognizance, the learned Magistrate need not take into consideration any documents other than the materials placed along CRL.RP No.862 /2018 19 with the complaint. According to him, the documents produced by the defence need not be considered at all. To substantiate the aforesaid contentions, the learned Senior Counsel places reliance upon Nandakumar’s case (supra). It is true that, the Magistrate need not consider the defence documents at the time of taking cognizance and factors relevant for consideration at that time, are the averments contained in the complaint and the materials produced along with the same, including the statements of the relevant witnesses. However, in this case, while considering the said issue, the fact that the Police had conducted a detailed investigation and certain conclusions were arrived at after collecting certain materials from the parties cannot be ignored. In Parameswaran Nair’s case (supra), the procedure to be adopted by the learned Magistrate upon submitting a complaint after the Police submits refer report is clearly CRL.RP No.862 /2018 20 observed. In paragraph 17 of the said judgment, the procedure to be followed by a learned Magistrate has been clearly stated as follows: _17. The well settled legal propositions can be summed up as follows:_ _(1) When a final report is made by an officer of the Police Station under sub-section 2 of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report._ _(3) Magistrate can direct further investigation under sub-section 3 of S.156._ _(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the Police and issue summons._ CRL.RP No.862 /2018 21 _(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.”_ **==> picture [447 x 11] intentionally omitted <==** judgment, it is evident that, once a final report is submitted by the Police referring the case, the Magistrate has to take a decision as to whether it has to be accepted or not. The learned Magistrate has the power to accept it and to take cognizance of the offence if he is satisfied that the ## CRL.RP No.862 /2018 22 materials produced along with the final report reveal a cognizable offence. It is also possible for the learned Magistrate to conduct further inquiry into the matter. In case the Magistrate decides to accept the police report, he can do the same after issuing notice to the complainant. Upon receipt of the notice, the complainant shall be at liberty to submit a complaint, and the Magistrate has to take into consideration the contents of the complaint and also the final report submitted by the Police for arriving at a decision as to whether the police report is to be accepted or not. In this case, upon receipt of the refer report submitted by the police, a notice was issued to the 2[nd] respondent/complainant and in response to the same, a complaint which is numbered as Crl.M.P.No.1177/2017 is seen filed by the 2[nd] respondent wherein the present order is passed. On going through the aforesaid order, it can be seen that, the complaint submitted by the CRL.RP No.862 /2018 23 2[nd] respondent was treated as an objection to the refer report. However, the impugned order does not contain any reference as to the conclusions arrived at by the Police in the reference report and the documents relied on by the Police while arriving at such a conclusion. In my view, this is a lapse on the part of the learned Magistrate. Indeed, the learned Magistrate need not take into consideration any documents produced by the defence at the time of taking cognizance and according to the learned Senior Counsel for the respondents 3 to 6, due to these reasons, Annexure-V and Annexure-VI documents cannot be taken into consideration by the learned Magistrate. However, on reading the refer report submitted by the Police, it can be seen that Annexures-V and Annexure-VI documents were produced by the complainant himself before the Investigating Officer, and the same was relied on by him for substantiating his case. Therefore, the ## CRL.RP No.862 /2018 24 aforesaid documents form part of the conclusions arrived at by the Police; hence, the same should have been taken into consideration. Even otherwise, since the conclusion of the police report is based on the said documents, it is a material aspect to be taken into consideration even at the time of taking cognizance. As pointed out by the learned counsel for the petitioners, such exercise has not been conducted by the learned Magistrate in this case while passing the impugned order. Therefore, the order is liable to be interfered with. 16. With regard to the sustainability of the prosecution on the ground of the civil nature of the transaction, I am of the view that the same need not be considered at this stage of proceedings. This is mainly because the primary challenge raised in this Revision Petition is the irregularity in the order of taking cognizance. Since it is revealed that the learned Magistrate CRL.RP No.862 /2018 25 has taken cognizance without considering all the necessary documents which ought to have been perused despite being placed before him, it is only proper that the aforesaid aspect be considered by the learned Magistrate afresh. In such circumstances, this Crl.RP is allowed and the order dated 11.4.2018 in Crl.M.P.No.1177/2017 passed by the Chief Judicial Magistrate Court, Thrissur, is hereby set aside. The matter is remitted back to the learned Magistrate, and the same shall be reconsidered after specifically taking into account the contents of the final report submitted by the Police, the material along with the same and also the other materials placed on record by the complainant/legal heirs of the complainant. However, it is clarified that, while taking a decision of taking cognizance, the complainant, as well as the Public Prosecutor alone, need to be heard. Since the case is at the pre-cognizance CRL.RP No.862 /2018 26 stage, the Revision Petitioner herein does not have any legal right to be heard. It is further directed that, after hearing the complainant and the Public Prosecutor, the learned Magistrate shall be at liberty to take appropriate decision in the matter, as held by this Court in Parameswaran Nair’s case (supra). Crl.R.P. is disposed of with the above directions. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.RP No.862 /2018 27 ## APPENDIX ## PETITIONERS’ ANNEXURES: |ANNEXURE-1|TRUE COPY OF THE COMPLAINT FILED BY THE 2ND<br>RESPONDENT BEFORE THE HOME MINISTER OF KERALA ALONG<br>WITH A TYPED COPY.| |---|---| |ANNEXURE-II|TRUE COPY OF THE LETTER NO.G3/29258/2015/RC ISSUED<br>BY DISTRICT POLICE CHIEF, THRISSUR TO THE STATION<br>HOUSE OFFICER, TOWN EAST POLICE STATION, THRISSUR<br>CITY DIRECTING TO REGISTER A CASE AND TO<br>INVESTIGATE| |ANNEXURE-III|TRUE COPY OF THE FIR NO.321/2016 OF THRISSUR TOWN<br>EAST POLICE STATION| |ANNEXURE-IV|TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE<br>THRISSUR TOWN EAST POLICE| |ANNEXURE-V|TRUE COPY OF CONTRACT OF SALE AND SHARE AGREEMENT<br>EXECUTED BETWEEN THE PARTIES DURING 2007| |ANNEXURE-V(A)|TRUE ENGLISH TRANSLATION OF ANNEXURE-V| |ANNEXURE-VI|TRUE COPY OF THE AMENDED MEMORANDUM OF ASSOCIATION<br>OF THE COMPANY| |ANNEXURE-VI(A)|TRUE ENGLISH TRANSLATION OF ANNEXURE-VI| |ANNEXURE-VII|TRUE COPY OF THE SWORN STATEMENT OF THE 2ND<br>RESPONDENT| |ANNEXURE-VIII|TRUE COPY OF THE SWORN STATEMENT OF WITNESS-JOHN<br>DANIEL| |ANNEXURE-IX|TRUE COPY OF THE SWORN STATEMENT OF WITNESS-<br>JAYAKRISHNAN KRISHNA MENON| |ANNEXURE-X|TRUE COPY OF THE SWORN STATEMENT OF WITNESS-MURALI| |ANNEXURE-XI|TRUE COPY OF THE SWORN STATEMENT OF WITNESS-SUMESH<br>K.R.| |ANNEXURE-XII|TRUE COPY OF THE SWORN STATEMENT OF WITNESS-SUNOJ|