Allowed

Swaran Singh v. N.R.Sasikumara Kurup and Another

Kerala HC2 Jun 2008Crl.MC/4092/2006

Case brief

AI extract

What is this about?

Single judge quashed criminal proceedings for cheating against petitioner in a commercial dispute regarding tele serials after finding full payment was made by accused, despite delayed installments, on grounds of inherent jurisdiction under section 482 CrPC.

What did the court decide?

Proceedings pending against the petitioner in CC.No. 341/2002 on the file of the Judicial Magistrate, First Class, Karunagappally are quashed.

Swaran Singh Vs N.R.Sasikumara Kurup and… — Contract and Commercial Disputes | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930

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Crl.MC.No. 4092 of 2006(B)

PETITIONER/ACCUSED :

SHRI SWARAN SINGH, S/O.LATE C.M.SUDHAN SINGH, D-1/14, HAUZ KHAS, NEW DELHI-110016.

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BY ADV. SRI.MILLU DANDAPANI

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RESPONDENTS/COMPLAINANT AND STATE :

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N.R.SASIKUMARA KURUP, PROPRIETOR, SARASAM VISIONS, NANGASSERIL, PUTHEN CHANDA, CHAVARA, QUILON.

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STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, CHAVARA POLICE STATION, QUILON, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.

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BY ADV. SRI.T.M.CHANDRAN - R1 SRI.V.A.SASIDHARAN - R1

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PUBLIC PROSECUTOR SRI.JAI GEORGE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4092 of 2006(B)

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ORDER ON CRL.M.APPLN.NOS.7378/2006 AND 2102/2008 IN Crl.M.C. 4092/2006

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DISMISSED

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02.06.2008

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SD/-, A.K.BASHEER, JUDGE

-TRUE COPY-

P.A. TO JUDGE

pac

A.K. BASHEER, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Crl.M.C.No. 4092 of 2006-B

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2^nd day of June, 2008 Order

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Petitioner who has been arraigned as accused in Crime No.531/20000 of Chavara Police Station has preferred this petition under section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against him. It is the admitted position that the Police has lodged the charge sheet against the petitioner before the court and the case is now pending as CC.No.341/2002 on the file of the Judicial Magistrate of First Class, Karunagappally.

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The above crime was registered at the instance of respondent No.1 herein who initially filed Annexure A complaint before the learned Magistrate referred to above. In the complaint the complainant claimed that he is a Producer-cum-Director of feature films and T.V. serials. He had several films and T.V.serials to his credit which had achieved great acclaim and reputation. Petitioner/accused had evinced interest in purchasing one of his serials named 'Hamsageetham'. The accused had made a lucrative offer and agreed to purchase the episodes of the above serial. Accordingly in November 1998 episode nos.3 to 13 of the above serial were handed over to the accused after an agreement was reached with regard to the price thereof. It is not necessary to refer to the other details of the so called agreement.

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In the complaint it was alleged that 2 of the 8 cheques issued by the accused pursuant to the agreement were dishonoured when they were presented for encashment. The Bank had informed the petitioner that the accused had closed his account also. It was in the above

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Crl.MC.4092/2006. 2

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circumstances that the petitioner had preferred Annexure A complaint alleging, inter alia, that the accused had cheated him intentionally in order to cause mandatory loss to him. The complainant further alleged that he had sustained a total loss of Rs.18,25,961/- in connection with the above transaction between him and the accused.

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The case of the complainant was that the accused had paid him Rs.3 lakhs in cash and issued 13 cheques for Rs.1,09,423/- each. The above cheques were dishonoured when presented for encashment. Later the matter was compromised. The accused agreed to discharge the entire liability of Rs.15,54,000/- . It is revealed that the accused had paid over a sum of Rs.3,54,000 in cash which was in fact deposited by him before the Magistrate. The balance amount was agreed to be paid by the accused in 5 instalments, 4 of which were at the rate of Rs.2,50,000/- and the last being for Rs.2 lakhs. The first instalment was to be paid on or before July 21, 2001 and the last on November 24, 2001.

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It is contended by the learned counsel for the petitioner that the entire amount as agreed upon between the parties had been paid by the petitioner. He invites my attention to Annexure C series of receipts in this connection.

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The above complaint was filed by the complainant before the Judicial Magistrate of First Class, Karunagappally on November 3, 2000. It is revealed from the records that the statement made by the learned counsel at the Bar that the above complaint was forwarded by

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Crl.MC.4092/2006. 3

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the learned Magistrate to the Police for investigation under Section 156 (3) of the Code of Criminal Procedure. It appears that the Police laid the charge sheet after completing the investigation only in the later part of the year 2002. But in between there were several developments in the case. It is on record that the complainant and the accused had entered into Annexure B compromise deed on June 8, 2001. The grievance of the petitioner is that in spite of the fact that the entire liability had been discharged, the complainant had refused to withdraw the case filed by him against the petitioner before the Chavara Police. Learned counsel submits that the prosecution initiated against the petitioner is clearly an abuse of process.

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Per contra, it is contended by the learned counsel for the complainant that the contention raised on behalf of the accused is totally misconceived and untenable. The Police had conducted investigation of Annexure A complaint as directed by the court under Section 156(3) of the Cr.P.C. In the course of the investigation, the Police had found that the allegations made by the complainant were true and correct. Accordingly the Police had charge sheeted the petitioner for the offence punishable under Section 420 IPC. The petitioner cannot approach this Court seeking invocation of the inherent power of this Court under Section 482 Cr.P.C to quash the above proceedings. His remedy is to approach the trial court and seek for a discharge, if so advised. Learned counsel further contends that even assuming the petitioner had made the payment subsequently, the

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Crl.MC.4092/2006. 4

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offence committed by him will not be obliterated. There were materials to show that petitioner had intentionally cheated the complainant, it is contended.

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It is beyond controversy that the entire amount payable by the petitioner/accused in connection with purchase of the tele serial has been paid by him to the complainant. But it is conceded by the petitioner that there was a delay of about one year in making the payment. As mentioned earlier, the last instalment of Rs.2 lakhs had to be paid by the petitioner on or before November 24, 2001. But Annexure C receipts would show that petitioner had made the said payment only on December 3, 2002. Similarly, there was considerable delay in payment of the other 3 instalments also. But it is pertinent to note that the complainant had not made any claim for interest for the delayed payment. He had received the last instalment in December 2002. Complainant would contend that he had no responsibility to persuade the Police to drop the charge against the petitioner but in Annexure B agreement it was stipulated in clause 2 that on receipt of the amount of Rs.15,54,000/- in 5 instalments which formed part of the compromise, the cases pending against the petitioner would be withdrawn by the complainant. It was further undertaken by the complainant that no further complaint or case would be filed by him before any court of authority against the petitioner. In Clause 3 it was further reiterated by the complainant with specific reference to the crime in this case (Crime No.531/2000) thus:

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Crl.MC.4092/2006. 5

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“That the first party undertakes to withdraw the Crime Case No. 531/2000 pending investigation at Police Station, Chavara under Section 420 IPC against the second party and the first party would return all the cheques in original to the second party”

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It is admitted by the petitioner that the complainant had handed over all the cheques pursuant to the above agreement. It was further agreed by the complainant that he would not lodge any complaint against the petitioner before any court thereafter. The complainant further undertook not to cause any hindrance, interference, objection in any manner in any of the projects being undertaken by the petitioner. But in answer to the above, it is contended by the learned counsel for the complainant that the above clause in the agreement would have come into play only if the petitioner had paid over the entire amount within the time schedule indicated in the agreement. Since the petitioner had paid over the amount with a delay of more than one year, he can not be heard to say that the complainant was bound to request the Police to drop the charge pending against the accused. It is also pointed out by the learned counsel that the complainant could not have unilaterally done so since the case was charge sheeted by the Police. The case could have been withdrawn or compounded only in a manner known to law for which the petitioner accused also ought to have appeared before the

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Crl.MC.4092/2006. 6

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court.

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There is some force in the above contention. But having regard to the entire facts and circumstances and particularly for the reason that the complainant has admittedly received the entire amount from the petitioner in connection with the transaction relating to the tele serial referred to above, I am of the view that the proceedings pending against the petitioner are liable to be quashed. I do so.

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Though learned counsel for the complainant and the accused have invited my attention to several decisions, I do not propose to refer to any of them in view of the peculiar facts and circumstances available in the case. In my view, this is a fit case in which the inherent jurisdiction of this Court under Section 482 of the Code is liable to be invoked, especially for the reason that petitioner is admittedly a resident of Delhi. Petitioner had remitted the entire amount way back in 2002 itself. At this stage it will not be just or proper to ask him to face trial in the above facts and circumstances. Therefore the proceedings pending against the petitioner in CC.No. 341/2002 on the file of the Judicial Magistrate of First Class, No.I, Karuangappally are quashed.

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Crl.M.C is allowed to the above extent.

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A.K. BASHEER Judge

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an.

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Crl.MC.4092/2006. 7

Swaran Singh v. N.R.Sasikumara Kurup and Another

Case brief

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Swaran Singh v. N.R.Sasikumara Kurup and Another

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