V.P. Jinisha v. Comfort Polymers and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936** ## **Crl.MC.No. 5915 of 2013** ## **----------------------------------** **AGAINST THE ORDER IN OS 515/2013 of PRL.MUNSIFF COURT, KOZHIKODE-II CRIME NO. 301/2013 OF FEROKE POLICE STATION , KOZHIKODE** **-------------** ## **PETITIONER(S)/ACCUSED NOS.1 TO 3:** **-------------------------------------------------------** **1. V.P.JINISHA, AGED 32 YEARS, D/O.ABDU SAMAD, PATHAYAPARAMBIL HOUSE, KOLATHARA P.O., KOZHIKODE TALUK, KOZHIKODE DISTRICT-673655.** **2. E.SAMEENA, AGED 34 YEARS,** - **D/O.MUHAMMEDKOYA, P.PS HOUSE, PARAKKANDIPARAMBU, KOLATHARA P.O., KOZHIKODE TALUK, KOZHIKODE DISTRICT-673655.** ## **3. K.P.SABITHA, AGED 30 YEARS,** **D/O.K.P.MOIDEEN, PATHAYAPARAMBIL HOUSE, KOLATHARA P.O. KOZHIKODE TALUK, KOZHIKODE DISTRICT-673655.** **BY ADVS.SRI.THOMAS J.ANAKKALLUNKAL SRI.M.REVIKRISHNAN** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **--------------------------------------------------------------------------** ## **1. COMFORT POLYMERS,** **REPRESENTED BY MANAGING PARTNER P.HYRUNNISA, AGED 48 YEARS, D/O.HYDROSE, DOOR 6/469, FEROKE COLLEGE ROAD, FEROKE COLLEGE P.O., KOZHIKODE DISTRICT-673632.** ## **2. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031.** **R1 BY ADV. SRI.NIRMAL. S** **R2 BY PUBLIC PROSECUTOR SRI.GITHESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 5915 of 2013** ## **---------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE-A: CERTIFIED COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 1ST RESPONDENT BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOZHIKODE.** **ANNEXURE-B: CERTIFIED COPY OF THE FIR IN CRIME NO.301/2013 OF FEROKE POLICE STATION, KOZHIKODE CITY.** **ANNEXURE-C: COPY OF THE PLAINT PRESENTED BY THE 1ST RESPONDENT AND OTHERS BEFORE THE COURT OF THE MUNSIFF II, KOZHIKODE IN OS NO.515/2013.** **ANNEXURE-D: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONERS HEREIN IN OS NO.515/2013 OF THE COURT OF THE MUNSIFF II, KOZHIKODE.** **ANNEXURE-E: COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONERS THROUGH LAWYER.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.5915 of 2013 ---------------------------------------------Dated this the 26[th] day of March, 2014 ## **ORDER** This petition is filed u/s.482 Cr.P.C. to quash Annexures-A complaint and Annexure-B FIR in Crime No.301/2013 of Feroke Police Station, Kozhikode, which is registered for offence u/s.120B, 406, 418, 420 r/w.34 IPC by invoking the inherent jurisdiction. 2. Petitioners are accused 1 to 3 in the above case. They are partners of Comfort Polymers, which is the partnership firm and the 1[st] respondent is one of the Managing partners. 3. The learned counsel appearing for the petitioners contended that this is only a civil transaction between the partners and no criminal offence will attract in this case. The matters relating to share of profit and retirement from the Crl.M.C.No.5915/13 2 partnership firm are to be considered by a civil court. On the other hand for the same sets of facts, a criminal case has been filed by the 1[st] respondent. Hence, he seeks to interfere in this matter. 4. It is admitted that the 1[st] respondent preferred Annexure-A complaint in the Judicial First Class Magistrate Court, Kozhikode. According to the petitioners, since it is a civil dispute, inherent jurisdiction may be invoked to quash Annexures-A and B. In _**Indian Oil Corporation**_ v. _**NEPC India Ltd. and others**_ [(2006) 6 SCC 736], in which it is held as follows: (paragraph13): “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil dispute into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such a tendency is seen in several family dispute also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In **G. Sagar** Crl.M.C.No.5915/13 3 **Suri** v. **State of U.P.** [(200) 2 SCC 636], this Court observed: “it is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code . Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 5. The 1[st] respondent complained in Annexure-A that the accused persons, while working as partners of the firm, agreed to retire from the firm and received an amount of Rs.68,37,261/- on different dates starting from 18.2.2012. Thereafter, they did not sign the retirement deed, thereby cheated the 1[st] respondent. In the circumstances, the 1[st] respondent filed Annexure-A complaint before Judicial First Class Magistrate Court, Kozhikode, which was forwarded to Feroke Police Station u/s.156(3) Cr.P.C. for investigation. After getting Crl.M.C.No.5915/13 4 Annexure-A, Feroke Police registered Crime No.301/2013 and after investigation, they filed a final report, which is now pending as C.C.No.1663/2013. 6. The learned counsel appearing for the 1[st] respondent contended that as per oral agreement, the petitioners agreed to retire from the partnership firm. Their share amount and the profit from the firm were disbursed to them on various occasions, after detailed discussion. But, contrary to that oral agreement, they declined to sign the retirement deed. Thus, they committed criminal offence. The learned counsel relied decisions in _**V.Y. Jose and another**_ v. _**State of Gujarat and another**_ [(2009) 3 SCC 78] and [2001(2) SCC 17] and _**Lalmuni Devi**_ v. _**State of Bihar and others**_ [2001 (2) SCC 17] 7. According to Section 482 Cr.P.C., the inherent powers can be exercised only for the three grounds mentioned therein, i.e., Inherent jurisdiction to make such orders necessary to “give effect to any order” under this Crl.M.C.No.5915/13 5 code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. Apex Court in _**State of**_ _**Haryana**_ V. _**Bhajanlal**_ , [1992 SCC (Crl) 426] held as follows: “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. 8. I have verified the allegations made in Annexure-A. The petitioners and the 1[st] respondent admitted that they were partners of 'Comfort Polymers', which was registered in the year 2009. While they were conducting this partnership firm, the alleged incident was occurred. The petitioners admitted that they received a portion of the amount as a profit from 2009 onwards. According to the 1[st] respondent, it is the share capital as shown in the balance sheet. If that be the position, I am of the opinion that prima facie case is not established. 9. In order to attract Section 420 IPC, the ingredients mentioned u/s.415 IPC has to be made out. Crl.M.C.No.5915/13 Crl.M.C.No.5915/13 6 According to Section 415, whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to 'cheat'. The Explanation says that 'A dishonest concealment of facts is a deception within the meaning of this section.' The ingredients of cheating and thereby dishonestly inducing to deliver any property to any person or to make alter or destroy any part of a valuable security or anything signed or sealed, which is capable of being converted into a valuable security is not prima facie found in Annexure-A. If that be the position, it is a pure civil dispute between the partners alone. Crl.M.C.No.5915/13 7 10. According to Section 12 of the Indian Partnership Act, every partner has a right to take part in the conduct of the business and he is bound to attend diligently to his duties in the conduct of the business and any difference arising as to ordinary matters connected with the business may be decided by a majority of the partners, and every partner shall have the right to express his opinion before the matter is decided, but no change may be made in the nature of the business without the consent of all the partners. Moreover, every partner has a right to have access to and to inspect and copy any of the books of the firm. In such a situation, the allegation against the petitioners is unsustainable and it did not make out a prima facie case against the petitioners. 11. The facts and circumstances of this case show that this is a fit case to invoke the inherent jurisdiction. Therefore, Annexure-A complaint and Annexure-B FIR and all further proceedings pursuant to Crime No.301/2013 of Crl.M.C.No.5915/13 8 Feroke Police Station, Kozhikode are hereby quashed. Accordingly, Crl.M.C. is allowed. However, the 1[st] respondent is at liberty to file a civil suit for settling of accounts, dissolution of the partnership firm and inducting new partners as per law. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.5915/13 9