Allowed

Mani v. State of Kerala

Kerala HC23 Nov 2022Crl.MC/766/2013

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against petitioners alleging cheque dishonour and cheating by a related firm. The court held the criminal case to be an attempt to convert a pure civil dispute into a criminal one, as alleged links between the petitioners and the firm committing the act were absent.

What did the court decide?

The proceedings against petitioners in C.C.No.1019 of 2007 of the Additional Chief Judicial Magistrate Court, Ernakulam, are quashed.

Mani Vs State of Kerala — Cheque Dishonour | Kerala HC (2022)

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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 BECHU KURIAN THOMAS

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WEDNESDAY, THE 23^RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA,

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1944

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CRL.MC NO. 766 OF 2013

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PETITIONERS/ACCUSED:

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1 MANI MANAGING PARTNER, CLASSIC AGENCIES, 14/23 F SOUTHERN TRADE TOWER, FRANCIS ROAD JUNCTION, KOZHIKODE

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2 OBAIDULLAH KHAN PARTNER, CLASSIC AGENCIES, 14/23 F, SOUTHERN TRADE TOWER, FRANCIS ROAD JUNCTION, KOZHIKODE

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3 UNNIKRISHNAN PARTNER, CLASSIC AGENCIES, 14/23 F, SOUTHERN TRADE TOWER, FRANCIS ROAD JUNCTION, KOZHIKODE

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4 JAYAPRAKASH PARTNER CLASSIC AGENCIES, 14/23 F, SOUTHERN TRADE TOWER, FRANCIS ROAD JUNCTION, KOZHIKODE

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BY ADVS. SRI.BOBY MATHEW SRI.E.T.MATHEW

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RESPONDENTS/STATE AND THE DEFACTO COMPLAINANT :

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA (SHO ERNAKULAM TOWN SOUTH POLICE STATION)

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2 KITCHEN APPLIANCES INDIA LIMITED C-6 ASHOK STEEL COMPOUND 159 C.S.T ROAD KALINA SANTACRUZ (EAST) MUMBAI 400 098 BY ADVS. SRI.P.K.ABDU RAHEEM SRI.SOORAJ T.ELENJICKAL

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PP SRI.NOUSHAD K.A

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 766 OF 2013

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BECHU KURIAN THOMAS, J

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......…..................................

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Crl.M.C.No.766 of 2013

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….................................. Dated this the 23rd day of November, 2022

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ORDER

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Petitioners are challenging Annexure-A1 final report in

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C.C.No.1019 of 2007 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam. The said case arose from Crime No.98/2007 of Ernakulam Town South Police Station, alleging offences punishable under Sections 420, 406, 467, 468, 471 r/w Section 34 and 120(B) of the Indian Penal Code, 1860.

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The crime was registered pursuant to a reference under Section 156(3) of Cr.P.C.; based on a private complaint filed by the 2 nd respondent, a copy of which is produced

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as Anenxure-A2. Consequent to the investigation, Police filed the final report alleging that after obtaining a dealership through the firm M/s.Classic Agencies, for dealing in economic products, the accused, through its sister concern-M/s.Malabar Marketing, purchased electronic articles and the 4th accused, who had signed as the

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CRL.MC NO. 766 OF 2013

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authorised signatory on behalf of both the firms, issued a cheque, which got dishonored on presentation, and thereby the accused made unlawful gain and also caused unlawful loss to the defacto complainant, and thereby committed the offences alleged.

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Sri.Boby Mathew, the learned counsel for the petitioner, submitted that the entire prosecution case is built upon shaky-legs as there is nothing that had been adduced to show that M/s.Classic Agencies and M/s.Malabar Marketing are sister concerns. It was submitted that petitioners are partners of M/s.Classic Agencies and have no connection whatsoever with the firm M/s.Malabar Marketing and, therefore, for an act admittedly alleged to have been committed by M/s.Malabar Marketing, petitioners cannot be proceeded with. The learned counsel also pointed out that the offences under Sections 467 and 468 of IPC are totally absent as Annexure-A1 does not whisper about such offences, other than merely incorporating the said provision in the final report. It was also argued that in any event, the proceeding initiated as a private complaint

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CRL.MC NO. 766 OF 2013

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was nothing but a cloak for a civil dispute and therefore the proceedings are liable to be quashed.

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Smt.Steffany Sharon and Adv.Sooraj T.Elenjickal, the learned counsel on behalf of the defacto complainant, on the other hand, submitted that the jurisdiction under Section 482 of Cr.P.C. cannot be invoked on the present set of allegations and the petitioners ought to be relegated

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to the trial court, since the questions raised are basically those that can be appreciated only after adducing evidence. The learned counsel also contended that documents produced by the petitioners are not complete

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and the final report has not been produced in full, and therefore this Court should not interfere under Section 482 of Cr.P.C.

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Sri.Noushad K.A., the learned Public Prosecutor, also submitted that the jurisdiction under Section 482 of Cr.P.C. cannot be invoked and that the matter requires appreciation of evidence.

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The very edifice on which the defacto complainant had built up its case, as is evident from Annexure-A2 is that,

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CRL.MC NO. 766 OF 2013

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petitioners are the partners of M/s.Classic Agencies, and they have a sister concern by name 'M/s.Malabar Marketing'. Curiously, the private complaint produced as Annexure-A2 and even in the final report as Annexure-A1, petitioners are referred to only as partners of M/s.Classic Agencies.

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It is the admitted case of the prosecution that the amount

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is due from M/s.Malabar Marketing, which is a partnership firm, and not from M/s.Classic Agencies. However, as mentioned above, petitioners are arrayed not as partners of M/s.Malabar Marketing; but as partners of M/s.Classic Agencies. In order to justify the inclusion of petitioners as accused for a criminal act committed by M/s.Malabar Marketing, it is essential that the prosecution brings forth material to connect petitioners with M/s.Malabar Marketing. Curiously, such materials are totally absent. There is nothing to show that petitioners are partners of M/s.Malabar Marketing and therefore, petitioners cannot be proceeded against for any act committed by M/s.Malabar Marketing. In such a view of

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CRL.MC NO. 766 OF 2013

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the matter, the offences under Sections 420 and 406 of IPC are not made out against petitioners.

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As rightly pointed out by the learned counsel for the petitioners, the offences under Sections 467 and 468 are alleged without any basis. What was the forgery committed and what was the record or public register which was forged does not find even a mention either in the private complaint or in the final report. The inclusion of the aforenoted sections are not supported by any materials also. In such circumstances, the offences alleged against the petitioners under Sections 467 and 468 of IPC are also not made out.

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Apart from the above, as rightly contended by the learned counsel for the petitioners, the dispute relates to amounts due from M/s.Malabar Marketing. It is a financial dispute based upon a commercial transaction. This Court as well as the Supreme Court have time and again frowned upon the attempt of complainants to convert a pure civil dispute into a criminal case for the purpose of compelling payment of amounts due from one party to the other.

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CRL.MC NO. 766 OF 2013

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Reference can profitably be made to the decision in Mitesh Kumar J. Sha v. State of Karnataka and Others

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[2021 SCC Online SC 976].

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Having regard to the above circumstances, I am of the view that this is a fit case where the proceeding initiated against the petitioners as Annexure-A1 in C.C.No.1019 of 2007 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam is an abuse of the process of law and is liable to be quashed.

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Accordingly, the proceedings against petitioners in C.C.No.1019 of 2007 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam are hereby quashed. The Crl.M.C. is allowed as above.

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Sd/BECHU KURIAN THOMAS JUDGE

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AMV/26/11/2022

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CRL.MC NO. 766 OF 2013

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APPENDIX

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PETITIONERS ANNEXURES :

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ANNEXURE-A1	COPY OF THE FINAL CRIME NO.98 OF 200 SOUTH POLICE STATI	REPORT DATED 26.02.2007 IN 7 OF THE ERNAKULAM TOWN ON.
ANNEXURE-A2	COPY OF THE CO FILED BYT HE 2ND	MPLAINT DATED 09.02.2007 RESPONDENT NUMBERED AS
	M.P.587 OF 2007 ERNAKULAM.	ON THE FILE OF ACJM,
ANNEXURE-A3	COPY OF THE LEGA CAUSED TO BE ISSUE TO THE PETITIONERS	L NOTICE DATED 22.08.2006 D BY THE 2ND RESPONDETN
ANNEXURE-A4	COPY OF THE REP 03.10.2006 CAUSED PETITIONERS TO THE	LY LAWYER NOTICE DATED TO BE ISSUED BY THE 2ND RESPONDENT.
ANNEXURE-A5	COPY OF NOTICE DA THE POSTAL COVER BY THE ARBITRATO RESPONDENT	TED 17.02.2007 ALONG WITH ISSUED TO THE PETITIONERS R APPOINTED BY THE 2ND

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RESPONDENTS ANNEXURES :

Mani v. State of Kerala

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Mani v. State of Kerala

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