Allowed

Divyamon Antony v. State of Kerala

Kerala HC17 Dec 2021Crl.MC/3354/2018

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings under Sections 420 and 379 IPC. It held that since the respondent did not possess the machinery or articles in dispute during the alleged fraudulent taking, and the transaction was merely a civil agreement failing to execute, no criminal offence was made out.

What did the court decide?

Crl. M.C. allowed; Annexure A complaint and further proceedings in C.C. No.516/2016 quashed.

Divyamon Antony Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2021)

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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 ZIYAD RAHMAN A.A.

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FRIDAY, THE 17TH DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943

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CRL.MC NO. 3354 OF 2018

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CC 516/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR, PALAKKAD

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PETITIONER/ACCUSED NOS.1&2:

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1DIVIYAMON ANTONY
AGED 44 YEARS, S/O ANTONY, NAMBADAN, DOOR NO.32,
SEERUVANI ROAD, NIRMALAMATHA CONVENT ROAD,
KUNIYAMMUTHOOR, COIMBATORE, TAMILANDU STATE.

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2LOVELY DIVIYAMON
AGED 39 YEARS, W/O DIVYAMON ANTONY,DOOR NO.32,
SEERUVANI ROAD, NIRMALAMATHA CONVENT ROAD,
KUNIYAMMUTHOOR, COIMBATORE, TAMILNADU STATE.

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BY ADV SRI.NIREESH MATHEW

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RESPONDENT/COMPLAINANT-STATE & DEFACTO COMPLAINANT:

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

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2M.A VINCENT
AGED 68 YEARS, S/O ANTONY MALIACKAL,
KAPPANI VEETTIL, VARAKKARA, MANNAMPETTA PO,
THRISSUR-680325.

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BY ADVS.

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SRI.K.GIRISH
SRI.RAJESH SIVARAMANKUTTY
PP-SRI.SUDHEER GOPALAKRISHNAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
17.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 3354 OF 2018

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ORDER

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The petitioners are the accused Nos. 1 and 2 in C.C. No.516/2016 on the files of the Judicial First Class Magistrate Court, Chittur. The aforesaid Calendar Case was registered on the basis of Annexure A private complaint submitted by the 2^nd respondent herein alleging offences under Section 420, 379 read with Section 34 of Indian Penal Code.

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The facts of the case leading to the dispute is as follows: The petitioners are running an establishment named ‘Anlilo Pipes and Cement Products’ which is engaged in manufacturing of cement pipes. The petitioners and the de facto complainant, who are relatives, entered into Annexure B agreement for sale of the machineries installed in the premises, where the unit was functioning, along with the goodwill of the firm, for a total sale consideration of Rs.8,42,400/-. Annexure B agreement was entered into on 30.06.2013 and an advance amount Rs.1.5 lakhs was collected from the de facto complainant. As per the terms and conditions of Annexure B agreement, the Management of the aforesaid firm along with its

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CRL.MC NO. 3354 OF 2018

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machineries and goodwill, were supposed to be transferred to the de facto complainant upon he paying the remaining amount towards the sales consideration on or before 30.10.2013. It appears that, certain disputes arose between the parties in the interregnum and it resulted in filing O.S. No.300/2013 at the instance of the 2^nd petitioner herein before the Munsiff Court, Chittur. The aforesaid civil suit was decreed in favour of the 2^nd petitioner, by issuing a permanent prohibitory injunction against the de facto complainant and his son, from trespassing upon the plaint schedule property and causing obstruction to the plaintiff in producing cement pipes and other cement products therein. Annexure A private complaint was submitted by the de facto complainant on 23.12.2013 alleging the offences mentioned above and cognizance of the same was taken by the learned Magistrate as C.C. No.516/2016. This Crl.M.C. is filed by the petitioner seeking to quash the aforesaid proceedings.

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Heard Sri. Nireesh Mathew, learned counsel for the petitioners, Sri.Rajesh Sivaramankutty, learned counsel appearing for the 2^nd respondent and Sri.Sudheer Gopalakirshnan, learned Public

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CRL.MC NO. 3354 OF 2018

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Prosecutor appearing for the State.

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The specific case of the learned counsel for the petitioner is that, none of the offences alleged against petitioners are attracted. Going by the averments contained in Annexure A complaint, it can be seen that allegations raised against the petitioners are with respect to the sale of certain machineries and the finished products therein by the petitioners herein. It was pointed out that, it is evident from Annexure B agreement that the management of the firm and the possession of the machineries were never entrusted to the de facto complainant and all the properties which were alleged to be sold by the petitioners herein were in the absolute possession and enjoyment of the petitioners herein. In such circumstances, none of the aforesaid offences would attract against them. On the other hand, the learned counsel for the respondent would contend that, they have paid more amounts than mentioned in the agreement and he was working in the establishment after execution of Annexure B agreement. He also claims right over the aforesaid articles as well.

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The only question that arises is as to whether allegation

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CRL.MC NO. 3354 OF 2018

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of sale of articles by the petitioners would attract the offences under Sections 420 and 379. As regard to the offences under Section 379 is concerned, the same would get attracted only if any property was taken away by the accused with dishonest intention from the possession of the complainant without that person’s consent. The basic requirement for attracting aforesaid offence is that the de facto complainant must be having possession or ownership over the subject matter of the dispute. As far as the allegations raised in this case are concerned, the articles which were allegedly taken away by the petitioners were kept in the premises exclusively owned by petitioner and were under their exclusive possession. The only document based on which a claim is raised by the de facto complainant is Annexure B. The said document only indicates that an agreement was entered into between the parties, as to the sale thereof subject to certain conditions. It is discernable that, only an advance amount of Rs.1,50,000/- was paid and there was an obligation upon the 2^nd respondent to pay the balance amount before 30.10.2013 for getting the possession and management of the firm as well as machineries. There are no

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CRL.MC NO. 3354 OF 2018

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materials to arrive at the conclusion that the aforesaid obligation was performed and possession was ever handed over to the de facto complainant herein. Admittedly the remaining amounts were not paid. In such circumstances, it is evident that the exclusive possession, control and ownership were vested upon the petitioners herein and if that be so, appropriation of any of the articles in any manner would not attract any penal consequences as against the petitioners. Therefore, the offence under Section 379 is not attracted.

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Another offence alleged against him is under Section 420 of Indian Penal Code. Here the only transaction is evidenced by Annexure B, which is an agreement for sale of management of the firm along with its machineries and goodwill. It is evident that, even though certain terms were agreed upon for such transfer and a part payment was made by the de facto complainant, the same never materialised. The transfer was never affected. In such circumstances, the act of appropriating the articles kept by the petitioners in their firm would not amount to cheating of the de facto complainant because the petitioners never transeferred their right over the aforesaid articles. If

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CRL.MC NO. 3354 OF 2018

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at all the de facto complainant has any grievances in respect of nonfulfillment of any conditions in Annexure B, that can only give rise to civil proceedings. No acts in connection with the same would constitute dishonest inducement on the part of the petitioners herein for attracting offences under Section 420. Thus on examining the entire facts and circumstances of the case, I am convinced that this is a fit case in which powers of this Court under Section 482 of Cr.P.C. can be invoked, as the allegations contained in Annexure A complaint, even if are accepted in its entirety for its face value, would not attract any of the offences.

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Accordingly, this Crl.M.C. is allowed, Annexure A complaint and further proceedings in C.C. No.516/2016 on the file of Judicial First Class Magistrate Court, Chittur are hereby quashed.

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Sd/-
ZIYAD RAHMAN A.A.
JUDGE

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SCS

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CRL.MC NO. 3354 OF 2018

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APPENDIX OF CRL.MC 3354/2018

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PETITIONER ANNEXURES
ANNEXURE ACERTIFIED COPY OF THE COMPLAINT FILED
BEFORE THE JUDL.FIRST CLASS MAGISTRATE
COURT, CHITTUR, DATED 23.12.2013 FILED
BY THE 2ND RESPONDENT.
ANNEXURE BPHOTOCOPY OF THE SALE AGREEMENT DATED
30.06.2013.
ANNEXURE CPHOTOCOPY OF THE JUDGMENT DATED
19.02.2014 IN O.S NO.300/2013 PASSED BY
THE MUNSIFF'S COURT, CHITTUR.

Divyamon Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

Divyamon Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

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