Dismissed

M/S. M a K Agro Commodities Trading Co. v. State of Kerala and Others

Kerala HC14 Feb 2013Crl.L.P./318/2008

Case brief

AI extract

What is this about?

In a criminal leave petition seeking leave to appeal an acquittal on charges of criminal breach of trust and cheating, a Single Judge dismissed the petition. The Court held that the complainant failed to prove the agreement and misappropriation, finding no merit in challenging the trial court's order.

What did the court decide?

Leave to appeal was denied and the criminal leave petition was dismissed.

M/S. M a K Agro Commodities Trading Co. Vs State of… — Cheating and Forgery | Kerala HC (2013)

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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 V.K.MOHANAN

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THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934

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Crl.L.P..No. 318 of 2008 ( )

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CC.447/2003 of JUDL.M.F.C.-I,ERNAKULAM DATED 07-11-2007

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PETITIONER/COMPLAINANT :

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M/S.M.A.K. AGRO COMMODITIES TRADING COMPANY PVT.LTD. REPRESENTED BY ITS MANAGING DIRECTOR M.A.K. AZAD, G-211, PANAMPILLY NAGAR MAIN AVENUE ROAD, KOCHI-36.

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BY ADV. SRI.A.P.SUBHASH

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RESPONDENT (S)/ACCUSED & STATE :

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1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. M/S.RABIA SEA FOODS, 20/550 NAMBIAPURAM ROAD, PALLURUTHI, KOCHI-682 006.

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3. K.A.HASHMIN, PROPRIETOR M/S.RABIA SEA FOODS, NAMBIAPURAM ROAD, PALLURUTHI KOCHI-682 006.

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4. K.K.ASRAF, MANAGER, AGED 68 YEARS M/S.RABIA SEA FOODS, NAMBIAPURAM ROAD, PALLURUTHI KOCHI-682 006.

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BY ADV. SRI.KKM.SHERIF

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SRI.P.M.KUNJIMOIDEENKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL BY PUBLIC PROSECUTOR SMT.V.H.JASMINE.

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 14-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.L.P.No.318 of 2008

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Dated this the 14^th day of February, 2013.

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O R D E R

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The complainant in a prosecution for the offence punishable under section 406 r/w 34 of IPC is the petitioner, who seeks leave of this Court under section 378 (4) of Cr.P.C. to file an appeal against the judgment dated 7.11.2007 in C.C.No.447 of 2003 of the court of the Judicial First Class Magistrate-I, Ernakulam, by which the learned Magistrate acquitted the accused under section 248(1) of Cr.P.C.

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The case of the complainant is that the complainant company is a registered company under the provisions of Companies Act and is an exporter of fish and shrimps. The 2^nd accused is the proprietor of first accused proprietary concern and the 3^rd accused is the Manager of the same. According to the complainant, the accused are

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Crl.L.P.No.318 of 2008

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agents of complainant to purchase fish and shrimps and as per the terms and conditions fixed between the accused and the complainant, the complainant had to give necessary amounts in advance to the accused who in turn purchase goods for and on behalf of the complainant and process it in their factory and deliver it to the godown of the complainant. According to the complainant, the accused had to load cargo into the steamership and the bill of lading had to be submitted to the complainant. According to the complainant, the said business started during the year 1997. It is the further case of the complainant that during the period from 1.12.2000 to 30.6.2001, the complainant had entrusted an amount of `1,73,22,596.69 with the accused for purchasing necessary fish and shrimps and the accused received the said amount from the complainant making the complainant believe that they would purchase the requisite cargo using the above amount. But according to the complainant, contrary to the above undertaking and

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terms, the accused purchased only goods worth 1,38,11,705/- and thus an amount of 35,10,891.69 was misappropriated by the accused and they diverted the same for their own benefit and enrichment. Thus the accused in furtherance of their common intention, cheated the complainant by misappropriating the amount. It is the further case of the complainant that though a complaint was filed before the Palluruthy police station and Harbour police station, because of the influence of the accused, no action was taken and therefore the complainant approached the trial court by filing a complaint alleging offences punishable under sections 409 and 420 r/w 34 of IPC, against the accused.

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After recording the sworn statement of the complainant, the complaint was taken on file for the offence punishable under sections 409 and 420 r/w 34 of IPC. On the appearance of the accused and after recording the evidence of the complainant and his witness, under section

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244 of Cr.P.C. and after hearing both, the court has framed a charge against the accused only for the offence punishable under section 406 r/w 34 of IPC and when the said charge read over to the accused, they denied it and pleaded not guilty. Thereafter, the trial was proceeded, during which Pws.1 to 10 were examined and Exts.P1 to P11 series were marked from the side of the complainant and from the side of the defence, though no oral evidence was adduced, Exts.D1 to D5 series were marked. On the basis of the rival pleadings and contention and the evidence and materials on record, the trial court formulated two points for its consideration, among which the first point is whether the accused committed criminal breach of trust as alleged. After an elaborate discussion and appreciation of the evidence on record, the finding of the court below was against the complainant and accordingly the accused are acquitted under section 248(1) of Cr.P.C. as per the above judgment. It is the above finding and order of acquittal

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sought to be challenged by filing an appeal for which leave of this Court is sought for.

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I have heard Adv.Sri.A.P.Subhash learned counsel

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for the petitioner and Adv.Sri.Lal K . Joseph learned counsel for the respondents.

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Learned counsel for the petitioner vehemently submitted that the entire findings of the learned Magistrate are on the ground that the complainant failed to produce any evidence to prove the agreement that allegedly entered into between the complainant and the accused, and the learned Magistrate went wrong in holding that, the written agreement referred to by PW1 during his examination was the written agreement between the complainant and the accused with respect to the purchase of fish and shrimps for and on behalf of the complainant. It is also the submission of the learned counsel that in order to attract the offence under section 406 of IPC, there need not be any written agreement. Therefore, according to the learned counsel,

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the findings of the court below are incorrect and liable to be interfered with and the order of acquittal recorded in favour of the accused is liable to be set aside.

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On the other hand, counsel for the respondents submitted that the evidence adduced from the side of the complainant are insufficient to attract the offences alleged against the accused, especially when the complainant has failed to adduce any evidence with respect to the agreement allegedly entered into between the complainant and the accused. Learned counsel has also pointed out that the factum of entrustment of the amount was sought to be proved by the complainant by producing Exts.P1 to P3 vouchers. But even if those documents are taken as true, though not proved properly, the amounts covered by those documents will come only to the tune of 1,38,11,705/-. But, whereas the allegation of the complainant is that he had entrusted with the accused a total sum of 1,73,22,596.69. So the allegation of the complainant,

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Crl.L.P.No.318 of 2008

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according to the counsel for the respondent, that the respondent has misappropriated an amount of

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`35,10,891.69/- is incorrect and the said allegation is not proved positively. Thus according to the counsel, the court below has considered the entire evidence and materials on record, and found against the petitioner and therefore there is no scope for any interference of this Court, even if an appeal is entertained.

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I have carefully considered the contentions advanced by the counsel for the petitioner and the respondent and I have also perused the judgment of the trial court.

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In the light of the rival contentions and the findings of the court below on the basis of the evidence and materials referred to in the judgment, which is sought to be challenged, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the findings of the court

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below and the further question to be considered is whether the findings of the court below are tainted or liable to be interfered with as the same are perverse or illegal.

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The learned Magistrate in his judgment, particularly in paragraph 7, has considered the entire case of the complainant and the evidence on record. The learned Magistrate has also considered the other evidence adduced from the side of the complainant. From such discussion and the evidence referred to above, it is crystal clear that the complainant has miserably failed to prove the terms and conditions of the so called agreement between the complainant and the accused. In this juncture it is relevant to note that the specific case of the complainant is to the effect that, as disclosed from the evidence of PW1, the complainant, the accused are agents of complainant to purchase fish and shrimps and as per the terms and conditions fixed between the accused and the complainant, the complainant had to give necessary amounts in advance

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to the accused who in turn purchase goods for and on behalf of the complainant and process it in their factory and deliver it to the godown of the complainant. The accused had to load cargo into the steamership and the bills of lading has to be submitted to the complainant. Whereas, the specific defence taken by the accused is that there was no agreement between the complainant and the accused for purchasing fish by the accused for the complainant and according to them, they were only purchasing the fish given by the complainant and they were not purchasing fish for the complainant. So the question, especially when the accused disputed the agreement claimed by the complainant, is whether the complainant has established the contract or agreement beyond reasonable doubt by which the accused are allegedly entrusted with such work and money, and proved the terms and conditions of such contract. Absolutely there is no evidence. In this case it is relevant to note that though PW1 has claimed that there

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was a written agreement, his own witness examined as PW5, who is none other than his official auditor deposed before the court that he is not aware of any written agreement between the complainant and the accused, and according to him, he knows only an oral understanding between the complainant and the accused. So with respect to the alleged contract or agreement, absolutely there is no acceptable and legal evidence. It is unbelievable that the complainant has entrusted with the accused such a huge amount without executing a proper and valid agreement. It is incumbent upon the complainant to plead and prove that in violation of the terms and conditions, under which the money was entrusted with was misused or misappropriated. In the absence of such agreement or any evidence to prove the transaction, it cannot be said that the complainant has succeeded in proving that he had entrusted such and such amount with the accused and the accused in violation of the terms and conditions misused such amount.

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In this juncture it is pertinent to note that as correctly pointed out by the counsel for the respondent, even going by the documentary evidence like Exts.P1 to P3, as rightly held by the trial court, according to me, the complainant has miserably failed to prove that he had entrusted such amount with the accused as alleged in the complaint. The learned Magistrate in paragraph 10 of his judgment, has elaborately considered the authenticity of Exts.P1 to P3 vouchers and receipts, and found that those documents are defective and the same cannot be acted upon safely, since some of the documents does not contain the signature and some are bearing different signatures etc. Still then, even if the case of the complainant is admitted as true for the time being, the available evidences are not sufficient to hold that the accused has misappropriated an amount of `35,10,891.69/-. Thus going by the judgment of the trial court, it can be seen that the trial court refused to accept the case of the complainant for which cogent and

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sufficient reasons are assigned by the learned Magistrate. Therefore, it cannot be said that the findings of the court below are perverse or illegal so as to interfere in an appeal. In a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} the Honourable Apex Court has held, particularly in paragraph 14 that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. On examination of the facts and circumstances involved in the case and the findings of the court below in the light of the decision cited supra, according to me, even if an appeal is entertained there is little scope for interference with the findings of the court below and the order of acquittal. Therefore, the above leave petition is devoid of any

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merit and accordingly the same is dismissed.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

M/S. M a K Agro Commodities Trading Co. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

M/S. M a K Agro Commodities Trading Co. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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