Dismissed

C.K. Vijayan v. State

Kerala HC23 Nov 2016Crl.MC/4045/2016

Case brief

AI extract

What is this about?

The Court dismissed petitions seeking to quash criminal proceedings based on sibling disputes over company management. It held that quashing is a sparing remedy and that the allegations prima facie disclosed an offence, noting petitioners 2 to 4 require careful handling.

What did the court decide?

The petitions to quash the proceedings are dismissed. The investigating officer is directed to tread carefully regarding petitioners 2 to 4.

C.K. Vijayan Vs State — Cheque Dishonour | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

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Crl.MC.No. 4045 of 2016

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CRIME NO. 1062/2015 OF KADAVANTHRA POLICE STATION , ERNAKULAM

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PETITIONER(S)/ACCUSED 1 TO 3:

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1. C.K. VIJAYAN, AGED 52 YEARS, S/O.KRISHNANKUTTY, CHANJAMATTATHIL, FLAT NO.6A, VIJAYA GLIMPSES, JAWAHAR NAGAR, KADAVANTHRA, KOCHI 682 020.

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2. MRS.SHALIN VIJAYAN, AGED 44 YEARS, WIFE OF C.K.VIJAYAN, -DO-

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3. SAIRA THAMPI, AGED 46 YEARS, W/O.LATE THAMPI KRISHNA, FLAT NO. 7A, VIJAYA GLIMPSES, KADAVANTHRA P.O, KOCHI 682 020.

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BY ADVS.SRI.S.EASWARAN

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SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE

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SRI.P.SREEKUMAR (THOTTAKKATTUKARA) SMT.SOUMYA JAMES

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RESPONDENT(S)/STATE & DE FACTO COMPLAINANT:

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1. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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2. SIBI C.K, AGED 45 YEARS, S/O. KRISHNANKUTTY CHANJAMATTATHIL, FLAT NO. 7D, VIJAYA GLIMPSES, JAWAHAR NAGAR, KADAVANTHRA, KOCHI 682 020.

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3. THE SUB INSPECTOR OF POLICE, KADAVANTHRA POLICE STATION, KADAVANTHRA, KOCHI 682 020.

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R1 & 3 BY PUBLIC PROSECUTOR SRI.AMJAD ALI R2 BY ADV. SRI.C.P.UDAYABHANU

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-11-2016, ALONG WITH CRL.MC.NO.4060/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4045 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE A1. COPY OF COMPLAINT DATED 5.8.15 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, KADAVANTHRA.

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ANNEXURE A2. COPY OF FIR CRIME NO. 1062 OF 2015 OF KADAVANTHRA POLICE STATION.

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ANNEXURE A3. COPY OF ORDER D1(A)87393/2015/EC DATED 14.12.15 ISSUED BY THE COMMISSIONER OF POLICE KOCHI CITY.

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ANNEXURE A4. COPY OF ENQUIRY REPORT DATED 5.10.15 ISSUED BY THE ASSISTANT COMMISSIONER OF POLICE, KOCHI CITY.

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ANNEXURE A5. COPY OF ANNUAL RETURN SUBMITTED BY THE COMPANY FOR THE YEAR 2013.

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ANNEXURE A6. COPY OF NOTICE DATED NIL, ISSUED BY THE ASSISTANT COMMISSIONER OF POLICE.

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RESPONDENT(S)' ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

RAJA VIJAYARAGHAVAN, V., J.

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Crl.M.C. Nos. 4045 & 4060 of 2016

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Dated this the 23^rd day of November, 2016

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O R D E R

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~~~~~~~~

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1.A fight between siblings in connection with the

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management of two Companies has ended up in the registration of two Crimes. The elder brother and his family members are before this Court seeking to quash the proceedings at the threshold stage on the ground that the continuance of criminal proceedings is clearly an abuse of process.

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2.Crl.M.C. No. 4045/2016 is preferred by the petitioners, who are the accused Nos. 1 to 3 in Crime No. 1062 of 2015 of Kadavanthara Police Station registered for offences punishable under Sections 420, 468, 471 read with section 34 of the IPC. This Case involves the Company by name , M/s. Static Hotels and Resorts

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Pvt.Ltd.

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3.Crl M.C.No.4060 of 2016 is preferred by the petitioners,

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who are the accused Nos.1 to 3 and 5 in Crime No.1061 of 2015 of the Kadavanthara Police Station registered for offences punishable under Sections 420, 468, 471 read with Section 34 of the IPC. This case concerns the Company by name , M/s. Vijaya Hospitality & Resorts Pvt. Ltd.

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4.As the petitioners, except for the fourth petitioner in Crl.M.C. No 4060 of 2016, are one and the same and the contentions raised are identical, these cases were heard together and are disposed of by a common order. The facts of these cases are as follows:

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Crl.M.C. No 4060 of 2016 :-

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(a) The respondents 2 and 3, are the younger brothers of the 1^st petitioner. They were the Promoters

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cum Executive Directors of Vijaya Hospitality and Resorts Ltd., (hereinafter referred to as 'the Company'), a Company of which the 1^st petitioner is the Chairman. The 2^nd petitioner is the wife of the 1^st petitioner, the 3^rd petitioner is the wife of Late Sri.Thampi Krishna, the brother of the 1^st petitioner and the respondents 2 and 3 and the fourth petitioner is the son of the 1^st petitioner.

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(b) The Company is running a hotel by name “Elephant Court Resort” , with five star facilities, at Thekkadi. The Resort started functioning in the year 2007 and the 1^st petitioner was the Chairman and Late Thampi Krishna was the Managing Director. On 23.11.2011, Thampi Krishna expired. After the expiry of the brother, the 1^st petitioner took over the management of the Company and the respondents 2 and 3 were kept away. This led to the party respondents seeking for partition of the business for which the 1^st

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petitioner was initially amenable. When nothing transpired, the party respondents inquired with the Registrar of Companies and they came to understand that they have been removed from the post of Executive Directors on the basis of resignation letters purported to have been submitted by them. The party respondents allege that they have not signed and submitted any resignation letter and the same were fraudulently brought into existence. According to the party respondents, this was done by the accused to induct the family members of the 1^st petitioner and his other relatives. Stating these allegations, Annexure-A1 complaint was submitted before the Sub Inspector of Police, Kadavanthra.

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Crl M.C. 4045 of 2016 :-

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(a) The 2^nd respondent is the younger brother of the 1^st petitioner. The 2^nd petitioner is the wife of the 1^st

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petitioner and the 3^rd petitioner is the wife of Thampi Krishna, the brother of the party respondent and the 1^st petitioner.

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(b) It is alleged that the party respondent was the Director of M/s. Static Hotel and Resorts Pvt. Ltd., which was incorporated using funds from the ancestral properties. It is alleged that the petitioners had conspired together and had forged a resignation letter purported to have been signed by the 2^nd respondent and submitted the same before the Registrar of Companies to remove him from the post of Director of the Company. Stating these allegations, Annexure-A1 complaint was submitted before the Sub Inspector of Police, Kadavanthraone based on which Annexure-A2 Crime was registered.

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5.It appears that as per Annexure-A3 order dated 14.12.2015 of the District Police Chief, Kochi City, the

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investigation was handed over to the Assistant

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Commissioner of Police, District Crime Branch.

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6.Notice under Section 41 (A) of the Code was issued to the

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1^st petitioner by the Investigating Officer calling upon him to appear before him. It is at that point, these petitions are filed seeking to quash the proceedings on the ground that the offences are not made out .

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7.I have heard Sri.S.Easwaran, the learned counsel appearing for the petitioners, Sri.C.P.Udhayabanu, the learned counsel appearing for the 2^nd respondent and also the learned Public Prosecutor.

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8.It is submitted by the learned counsel appearing for the petitioners that the initiation of criminal proceedings against the petitioners clearly is an abuse of process. It is pointed out that the resignation letter was submitted by the respondents 2 and 3 on 7.6.2012. The Annual

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General Meeting of the Company was conducted on 30.9.2013 and the resignation letter was considered and the same was ratified by the Board. Thereafter, a Company Petition was submitted before the Company Law Board on 8.9.2015 and it was only after that the complaint raising false allegations was submitted before the 4^th respondent on 5.8.2015. The delay in approaching the police is highlighted and it is submitted that the complaint was lodged only for the purpose of sustaining the petition filed by the respondents 2 and 3 before the Company Law Board. It is submitted by the learned counsel that the specific allegation in the complaint is that the resignation letter was submitted on 7.6.2012 to include the petitioners 2 and 3 as Directors. Referring to Annexure-A5 copy of the annual return, it is submitted that the petitioners 2 and 3 were inducted in the year 2011 itself. If that be the case, according to the learned

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counsel, the implication of the petitioners 2 to 4 in the Crime is clearly malafide and the only intention of the respondents 2 and 3 is to spite them due to private and personal grudge.

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9.The learned counsel appearing for the respondents on the other hand submitted that the allegations in the complaint prima facie makes out an offence and this Court while exercising powers under Section 482 of the Code of Criminal Procedure cannot embark on an enquiry as to whether the allegations are likely to be established by evidence or not. Learned counsel would refer to Annexure-A4 enquiry report of the Deputy Superintendent of Police produced by the petitioners and would contend that the preliminary enquiry conducted by the officer prima facie reveals that the resignation letter was not genuine. If that be the case, the investigation will have to proceed further and this Court will not be justified in

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quashing the proceedings, is the submission.

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10.The learned Public Prosecutor on instructions submits that investigation is proceeding in a full fledged manner and enquiry is to be conducted by sending the resignation letter allegedly submitted by the respondents 2 and 3 to the handwriting expert to ascertain whether the same is forged. The learned Public Prosecutor has also produced the statement submitted by the Assistant Commissioner of Police, District Crime Branch, Kochi City, as directed by this Court. In the statement filed, it is stated that the 6^th accused, the Company Secretary, who has submitted the Form-32 along with the resignation letter has stated that only a scanned copy of the resignation letter is forwarded to the Registrar of Companies through the Internet. The original of the resignation letter and the Minutes of the Board Meeting are retained in the Company itself. On the basis of this statement, it is submitted that though notice

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was issued to the 1^st petitioner asking him to produce the resignation letter and Minutes, the same has not been complied with till date. The learned Public Prosecutor has also produced Annexure-R1(a) letter issued to the investigating officer by the 2^nd petitioner wherein it is mentioned that the 1^st petitioner will not be available for three months as he is on a business trip, presumably abroad. This is highlighted by the learned Public Prosecutor to contend that the 1^st petitioner has been deliberately avoiding the investigating officer.

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11.It has to be mentioned at this juncture that when the petition had come up for admission, this Court, taking note of the fact that the dispute is between siblings, had directed the parties to make an attempt to iron out the disputes by mediation. That did not prove fruitful. Though the petitioner was directed to co-operate with the investigation, it is submitted by the learned Public

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Prosecutor that he has kept himself away. Of course, the 1^st petitioner asserts that he was not served with any notice after the issuance of the interim order on 30.6.2016.

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12.In the above fact situation , the question is whether this Court will be justified in exercising its extra ordinary powers under Section 482 of the Code of Criminal Procedure to quash the proceedings.

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13.It is by now settled that terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in

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embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Reference can be made to the following judgments of the Apex Court where a note of caution was sounded to the Courts exercising powers under Section 482 of Cr.P.C.

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14.In R. Kalyani v. Janak C. Mehta and Others [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows:

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However, Dr. Monica Kumar and Another v. State of U.P. and Others [2008 (9) SCC p.798], para 36, held :

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"36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage."

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Propositions of law which emerge from the said decisions are :

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(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

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(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an

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offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

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(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.”

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15.In Kurukshetra University v. State of Haryana [1977

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(4) SCC 451], the Apex Court had laid down as follows :

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“It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.”

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16.Finally, in Som Mittal V Government of Karnataka

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[2008 (3) SCC 574], it was held as follows:-

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“We may observe here that despite this Court has consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.”

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17.After having gone through the materials on record and

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after hearing the submissions, I am of the considered view that this Court will not be justified in embarking upon an enquiry as to whether the allegations in the FIR are likely

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to be established in the evidence or not. A perusal of the FIR and the attendant materials dissuades this Court from invoking its extra ordinary powers under Section 482 of the Code of Criminal Procedure. When the complaint centers around resignation letter allegedly handed over by respondents 2 and 3 and when the preliminary investigation reveals that for reasons best known to the 1^st petitioner, the same is not made available for examination by a handwriting expert, this Court will not be justified in holding at this stage that the allegations in the complaint or in the FIR registered on its basis will not make out an offence.

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18.Insofar as the role played by the petitioners 2 to 4, prima facie , I find merit in the submission of the learned counsel appearing for the petitioners that they have been roped in without any solid material. Only a vague allegation of criminal conspiracy is alleged. In view of the

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above, in respect of the petitioners 2 to 4, the investigating officer is directed to tread with care and caution and not to harass them without proper materials conclusively pointing towards their involvement. They shall not be arrested or subjected to any harassment till final report is filed. If their presence is required for any purpose , notice under section 41 A will be given and they shall be bound to appear before the officer concerned. However, if after due service of the notice, they fail to appear, the benefit of this order shall not be available to them.

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19.However, for the purpose of exercise of powers under section 482 of the Code of Criminal Procedure, I am of the considered view that, at this juncture, it cannot be said that the offences alleged are not made out. This Court also will not be justified in dwelling into the matters in more detail lest it prejudice either of the parties. I am,

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therefore, of the considered view that the petitioners have failed to make out a case for quashing the criminal proceedings at the threshold itself.

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This petition is dismissed.

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Sd/RAJA VIJAYARAGHAVAN, V. JUDGE

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ps/19/11/2016

C.K. Vijayan v. State

Case brief

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C.K. Vijayan v. State

Case brief

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