Quashed

Aaba Fenila v. John v Muckadackal

Kerala HC6 Nov 2023Crl.MC/2874/2017

Case brief

AI extract

What is this about?

Three connected criminal miscellaneous cases were disposed of by a common order. The High Court, invoking inherent powers, quashed all proceedings against the petitioner, holding that since she was not the director of the company at the time of the alleged transaction, continuing the prosecution was an abuse of process.

What did the court decide?

All further proceedings against the petitioner in Crl.M.C Nos 7911, 7907, 2016 and 2874/2017 pending as CC No 275 of 2013, CC No 139 of 2014 and CC No 900 of 2015 are quashed.

Aaba Fenila Vs John v Muckadackal — Contract and Commercial Disputes | Kerala HC (2023)

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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 P.V.KUNHIKRISHNAN

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MONDAY, THE 6^TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945

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CRL.MC NO. 7911 OF 2016

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CRIME NO.1356/2012 OF Ernakulam Central Police Station, Ernakulam

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AGAINST THE ORDER/JUDGMENT CC 275/2013 OF CHIEF JUDICIAL

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MAGISTRATE, ERNAKULAM

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PETITIONER/S:

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AABA FENILA, AGED 28 YEARS
D/O VARGHESE T.G,THUNDATHIL HOUSE, NARAKKAL
PO.,VYPIN VILLAGE ERNAKULAM-682505

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BY ADVS.
K.C.ELDHO
ANEESH JAMES
JIJO THOMAS
KRISHNA SANTHOSH
KANDAMPULLY VIKRAM
MALLENATHAN.M.
M.REVIKRISHNAN

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RESPONDENT/S:

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1SUNDARAM BNP PARIBAS HOME FINANCE LTD
REP. BY P.N.ANOOP, ASST. MANAGER,SHANMUGHAM ROAD,
ERNAKULAM KOCHIPIN-682031

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2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,OF KERALA ERNAKULAM BY ADV SRI.VARGHESE C.KURIAKOSE

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OTHER PRESENT:

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SRI HRITHWIK CS,PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06.11.2023, ALONG WITH Crl.MC.2874/2017, 7907/2016, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:

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-2-

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 6TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945
CRL.MC NO. 2874 OF 2017

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AGAINST THE ORDER/JUDGMENT CC 900/2015 OF JUDICIAL FIRST
CLASS MAGISTRATE - VIII, ERNAKULAM (TEMPORARY)

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PETITIONER/S:

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AABA FENILA, AGED 28 YEARS, D/O.VARGHESE
T.G,THUNDATHIL HOUSE, NARAKKAL P.O.,VYPIN,
NARAKAL VILLAGE, KOCHI TALUK,ERNAKULAM-682 505.
BY ADVS.
SRI.K.C.ELDHO
SRI.ANEESH JAMES
SRI.JIJO THOMAS
SRI.MALLENATHAN.M.
SRI.M.REVIKRISHNAN

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RESPONDENT/S:

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1 JOHN V MUCKADACKAL, AGED 70 YEARS S/O.LATE VARKEY, AGED 70,ANN JINO MUCKADACKAL HOUSE, OPP. IRUMPANAM HIGH SCHOOL, THIRUVANKULAM VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN682 306.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR OF KERALA,ERNAKULAM.

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OTHER PRESENT:

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SRI HRITHWIK CS,PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06.11.2023, ALONG WITH Crl.MC.7911/2016 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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-3-

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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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 P.V.KUNHIKRISHNAN

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MONDAY, THE 6TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945
CRL.MC NO. 7907 OF 2016

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CRIME NO.741/2014 OF Kadavanthra Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT CC 139/2014 OF CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM

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PETITIONER/S:

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AABA FENILA, AGED 28 YEARS, D/O.VARGHESE.T.G.,
THUNDATHIL HOUSE, NARAKKAL P.O., VYPIN, NARAKAL
VILLAGE, KOCHI TALUK, ERNAKULAM-682 505.
BY ADVS.
SRI.K.C.ELDHO
SRI.ANEESH JAMES
SRI.JIJO THOMAS
SMT.KRISHNA SANTHOSH
SRI.KANDAMPULLY VIKRAM
SRI.MALLENATHAN.M.
SRI.M.REVIKRISHNAN

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RESPONDENT/S:

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1JUBAIDA SALEEM
S/O.S.A.SALEEM, AGED 61, ARA-46, 31/20-E,
AMBELIPPADAM ROAD, JANATHA, PANCHAVADY JUNCTION,
POONITHURA VILLAGE, ERNAKULAM-682 019.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR OF KERALA, ERNAKULAM.

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OTHER PRESENT:

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SRI HRITHWIK CS,PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06.11.2023, ALONG WITH Crl.MC.7911/2016 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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-4-

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P.V.KUNHIKRISHNAN, J.

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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Dated this the 6^th day of November, 2023

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ORDER

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These three Crl.M.C s are connected and therefore, I am

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disposing of these Crl.M.Cs by a common order.

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The petitioner in these Crl.M.Cs is same. The petitioner is

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an accused in CC No.275 of 2013 and CC No.139 of 2014 on the file

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of the Chief Judicial Magistrate, Ernakulam and also in CC No.900 of 2015 on the file of the Judicial First Class Magistrate Court -VIII, Ernakulam. The petitioner was the Director of a company namely Blue Dot Construction Pvt.Ltd. The company entered into an agreement with the 1^st respondent for delivering an apartment in a multi storied building by name Surya Enclave, after constructing the same.

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The prosecution case in CC No.275 of 2013 is that the 1^st

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accused is a company engaged in construction and sale of apartments.

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2^nd accused is the Managing Director of the 1^st accused company and

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-5-

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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the 3^rd and 4^th accused are the Directors of the 1^st accused company. The petitioner is the 3^rd accused. It is alleged that accused 5 to 7 approached the Shanmugham Road branch of the de facto complainant financial institution for availing a housing loan for purchasing an apartment in the flat by name ‘Surya Enclave’ being constructed by the 1^st accused company. The tripartite agreement was executed between the defacto complainant, the 1^st accused company and the 5^th accused, pursuant to which the 1^st portion of the loan amount to the tune of Rs.35 lakhs was disbursed to the 2^nd accused. However, later on contrary to the terms of agreement the said apartment was sold to a third party. It is alleged that all the accused had colluded together and forged documents to cheat the de facto complainant.

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In CC No.139 off 2014 also similar contentions are raised.

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It is stated that the company of the accused allegedly entered into an agreement of construction of apartment complex Akaash Heights on the promise that a flat in the said Akaash Heights could be delivered to CW1. Amounts were received from him and contra to the

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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understanding, according to the prosecution, the flat was not delivered to CW1. The prosecution has got further case that though towards the amount received in repayment of the same, cheques were issued by the company, the amounts still remains unpaid. It is therefore, alleged that the accused, therefore committed the offence.

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The prosecution case in CC No.900 of 2015 JFCM-VIII, Ernakulam is that the 1^st accused, who is the Managing Director of Blue Dot Construction Company, received amount from the 1^st respondent on the promise that an apartment under construction by name ‘Surya Enclave’ will be delivered to the 1^st respondent. However, contra to the said promise, according to the prosecution, the flat was not delivered to the 1^st respondent. The petitioner is allegedly a director of the 1^st respondent company. Hence, it is alleged that the accused committed the offence.

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According to the petitioner, even if the entire allegations are accepted in toto, no offence is made out against the petitioner. It is also submitted that in the same set of allegation, this Court quashed the proceeding against the petitioner in Crl.M.C Nos.2898 of 2017,

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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Crl.M.C No.2888 of 2017 and Crl.M.C No.6096 of 2018. The public prosecutor submitted that it is a matter of evidence and this Court may not interfere with the case.

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This Court perused the orders passed by this Court in Crl.M.C Nos.2898 of 2017, Crl.M.C No.2888 of 2017 and Crl.M.C No.6096 of 2018. A perusal of the same would show that on the same set of facts, this Court quashed the proceedings. It will be better to extract the relevant portion of the judgment dated 26.02.2019 in Crl.M.C No.2898 of 2017 here:

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“5. The learned counsel for the petitioner has submitted that the petitioner was not the Director of the company at the time of executing the agreement or thereafter and hence, the prosecution against the petitioner cannot be successfully maintained. It is borne out from the records that the agreement was executed and the advance amount was received by the company on 1.7.2007. The petitioner was originally the Director of the company. Annexure – K is Form 32, which would show that the petitioner ceased to be Director of the Company with effect from 31.3.2006. Thus, it is clear that the petitioner ceased to be Director of the Company with effect from 31.3.2006. The agreement in this case was executed on 1.7.2007. Therefore, there can be no doubt that the petitioner was not the Director of the company at the time when the agreement was executed.

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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Thus, it appears that as on the date of transaction, the petitioner was not the Director of the Company. In the said circumstances, the prosecution against the petitioner is an abuse of the process of court. In the said circumstances, I am inclined to quash the final report and further proceedings against the petitioner in the above case, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. It is ordered accordingly.”

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The allegation against the petitioner in these cases are also

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similar. Therefore, I am of the considered opinion that the

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continuation of the proceedings against the petitioner in these cases are also an abuse of process. Therefore, these Crl.M.Cs can be allowed quashing the proceedings against the petitioner.

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Therefore, these Crl.M.Cs are disposed of in the following manner:

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All further proceedings as against the petitioner in Crl.M.C No.7911 of 2016 pending as CC No.275 of 2013 on the file of the Chief Judicial Magistrate Court, Ernakulam, are quashed.

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All further proceedings as against the petitioner in Crl.M.C No.7907 of 2016 pending as CC No.139 of 2014 on the file of the Chief Judicial Magistrate Court, Ernakulam, are quashed.

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-9-

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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All further proceedings as against the petitioner in Crl.M.C No.2874 of 2017 pending as CC No.900 of 2015 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam, are quashed.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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das

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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APPENDIX OF CRL.MC 2874/2017

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`PETITIONE`	`R ANNE`	`XURES`
`ANNEXURE`	`A`	`CERTIFIED COPY OF THE FIR IN CRIME` `NO.471/2014 OF KADAVANTHARA POLICE` `STATION.`
`ANNEXURE`	`B`	`CERTIFIED COPY OF THE FINAL REPORT IN` `CRIME NO.471/2014 OF KADAVANTHARA` `POLICE STATION.`
`ANNEXURE`	`C`	`A TRUE COPY OF THE AGREEMENT DATED` `05.08.2006 ENTERED INTO BETWEEN THE` `PARENTS OF THE PETITIONER.`
`ANNEXURE`	`D`	`A TRUE COPY OF THE DECREE OF DIVORCE` `DATED 08.05.2009 IN OP NO.273 OF 2007` `PASSED BY THE FAMILY COURT, ERNAKULAM.`
`ANNEXURE`	`E`	`A TRUE COPY OF THE LETTER DATED` `01.03.2006 ISSUED BY THE PETITIONER` `HEREIN TO THE MANAGING DIRECTOR OF THE` `COMPANY.`
`ANNEXURE`	`F`	`A TRUE COPY OF THE MINUTES OF THE` `EXTRA-ORDINARY GENERAL MEETING OF THE` `COMPANY HELD ON 27.03.2006.`
`ANNEXURE`	`G`	`A TRUE COPY OF THE ORDER DATED` `09.12.2014 OF THIS HON'BLE COURT IN` `CRL.M.A.NO.11275 OF 2014 IN` `CRL.M.C.NO.6938 OF 2014.`
`ANNEXURE`	`I`	`A TRUE COPY OF THE ORDER DATED` `18.11.2016 OF THIS HON'BLE COURT IN` `CRL.M.A.NO.12221 OF 2016 IN` `CRL.M.C.NO.7907 OF 2016.`
`ANNEUXRE`	`H`	`A TRUE COPY OF THE ORDER DATED` `18.11.2016 OF THIS HON'BLE COURT IN` `CRL.M.A.NO.12224 OF 2016 OF` `CRL.M.C.NO.7911 OF 2016.`

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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APPENDIX OF CRL.MC 7907/2016

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`PETITIONE`	`R ANNE`	`XURES`
`ANNEXURE`	`B:`	`A TRUE COPY OF THE AGREEMENT DATED` `05.08.2006 ENTERED INTO BETWEEN THE` `PARENTS OF THE PETITIONER.`
`ANNEXURE`	`C:`	`A TRUE COPY OF THE DECREE OF DIVORCE` `DATED 08.05.2009 IN OP NO.273 OF 2007` `PASSED BY THE FAMILY COURT, ERNAKULAM.`
`ANNEXURE`	`D:`	`A TRUE COPY OF THE SAID LETTER DATED` `01.03.2006 ISSUED BY THE PETITIONER` `HEREIN TO THE MANAGING DIRECTOR OF THE` `COMPANY.`
`ANNEXURE`	`E:`	`A TRUE COPY OF THE MINUTES OF THE` `EXTRA-ORDINARY GENERAL MEETING OF THE` `COMPANY HELD ON 27.03.2006.`
`ANNEXURE`	`F:`	`A TRUE COPY OF THE ORDER DATED` `09.12.2014 OF THIS HON'BLE COURT IN` `CRL.M.A. NO.11275 OF 2014 IN` `CRL.M.C.NO.6938 OF 2014.`
`ANNECURE`	`A:`	`A TRUE COPY OF THE FINAL REPORT IN` `CRIME NO.741/2014 OF THE KADAVANTHARA` `POLICE STATION.`

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Crl.M.C Nos7911, 7907 of 2016 & 2874 of 2017

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APPENDIX OF CRL.MC 7911/2016

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`PETITIONE`	`R ANNE`	`XURES`
`ANNEXURE`	`A:`	`A TRUE COPY OF THE CHARGE SHEET IN CC` `NO.275/2013 OF THE CHIEF JUDICIAL` `MAGISTRATE COURT, ERNAKULAM`
`ANNEXURE`	`B:`	`A TRUE COPYOF THE AGREEMENT DATED` `05.08.2006 ENTERED INTO BETWEEN THE` `PARENTS OF THE PETITIONER`
`ANNEXURE`	`C:`	`A TRUE COPY OF THE DECREE OF DIVORCE` `DATED 08.05.2009 IN OP NO.273 OF 2007` `PASSED BY THEFAMILY COURT, ERNAKULAM`
`ANNEXURE`	`D:`	`A TRUE COPYOF THE SAID LETTER DATED` `01.03.2006 ISSUE DBY THE PETITIONER` `HEREIN TO THE MANAGING DIRECTOR OF THE` `COMPANY`
`ANNEXURE`	`E:`	`A TRUE COPYOF THE MINUTES OF THE EXTRA` `-ORDINARY GENERAL MEETING OF THE` `COMPANY HELD ON 27.03.2006`
`ANNEXURE`	`F:`	`A TRUE COPY OF THE ORDER DATED` `09.12.2014 OF THIS HON'BLE COURT IN` `CRL.M.A.NO.11275 OF 2014 IN` `CRL.M.C.NO.6938 OF 2014`

Aaba Fenila v. John v Muckadackal

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Aaba Fenila v. John v Muckadackal

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