IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.MC.No. 1686 of 2010() -------------------------------- CRIME NO. 199/2009 OF EDAVANNA POLICE STATION .............. PETITIONER(S): ACCUSED NO.1 & 2 ------------------------------- 1. K.C.PALANISAMI, S/O.CHENNIAPPA GOUNDER, NO.322, THADAGAM ROAD, COIMBATORE-2. 2. K.K.SIVAKUMAR, S/O.A.KRISHNASWAMY, 316, KULAMPALAYAM, ERODE-638 472. BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.SAKARIYA, NEERULPPEN HOUSE, EDAVANNA.P.O, MALAPPURAM. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.P.VENUGOPAL (1086/92) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.2741/2010 IN CRMC NO. 1686/2010 DISMISSED 15/09/2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE TRUE COPY P.S. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1686 OF 2010 =========================== Dated this the 15th day of September,2010 ORDER Petitioners the accused 1 and 2 in Crime No.199/2009 of Edavanna Police Station registered under Annxure A11 F.I.R for the offences under sections 420, 468 and 471 read with section 34 of Indian Penal Code, filed this petition under section 482 of the Code of Criminal Procedure to quash the F.I.R and further proceedings as against them. Annexure A11 F.I.R was registered based on Annexure A10 private complaint filed by the second respondent before Chief Judicial Magistrate, Manjeri and sent for investigation under section 156(3) of the Code of Criminal Procedure. Case of the petitioners is that none of the ingredients of the offences are attracted on the allegations raised in Annexure Crl.M.C.1686/2010 2 10 complaint and therefore continuation of the investigation against them is only an abuse of process of court. Petitioners contended that though first petitioner was the Managing Director of the Company, he ceased to be the Director with effect from 1.4.1997 and the second petitioner ceased to be the Director with effect from 27.5.2008 and therefore when according to Annexure 10 complaint, second respondent entered into the transaction with the Company petitioners have nothing to do with United Plantation Ltd, private limited company and therefore they cannot be prosecuted. It is also contended that though third accused was the General Manager of the Company, he was removed from the service of the Company on 17.7.2009 and a public notice was issued in Tamil Dailies on 21.8.2009 and in such circumstances, petitioners cannot be prosecuted. 2. Learned counsel appearing for the petitioners and the learned counsel appearing for second respondent and the learned Public Prosecutor Crl.M.C.1686/2010 3 were heard. 3. Annexure 10 complaint shows that it is the case of the second respondent that on 29.11.2008 all the accused received Rs.1,00,000/- and after one week received Rs.6,00,000/-, based on a lease agreement executed on 29.11.2008 between M/s.United Plantation Ltd, the Company and second respondent whereunder second respondent was permitted to collect tea leaves for a period of three years from the Estate consisting of 104 acres. It is alleged that subsequently due to labour dispute between the workers of the Company, second respondent could not collect the tea leaves and the lease agreement was cancelled and so the accused persons orally agreed to pay Rs.6,30,000/- after deducting 10% towards their expenses. It is the case that on 1.9.2009 the accused persons came to Edavanna and made the second respondent believe that third accused is the General Manager and the authorised signatory of the Company competent to issue a cheque on behalf of the Company and believing the Crl.M.C.1686/2010 4 representation made by the accused after providing a copy of power of attorney which was attested by P.Ranga Swamy Advocate and Notary, Othakamandalam second respondent received the cheque dated 4.9.2009 for Rs.6,30,000/- drawn on Union Bank of India, Gudallur Branch signed by third accused as the authorised signatory of the Company. It is contended that second respondent was made to believe that the cheque will be honoured on presentation. But when the cheque was presented, it was dishonoured and second respondent sent a notice to the accused persons as well as the Company and he received reply stating that the accused persons have no connection with the Company and then second respondent came to know that the accused persons were making false representations and induced the complainant to part with Rs.7,00,000/- with the dishonest intention of cheating the complainant and issued a cheque for Rs.6,30,000/- suppressing the material facts. It is contended that accused persons thereby committed Crl.M.C.1686/2010 5 the offence under sections 420, 468 and 471 of Indian Penal Code. 4. Annexure I copy of Form 32 issued by the Registrar of Companies establish that first petitioner/first accused resigned from the Board of Directors with effect from 1.4.1997. Annexure II copy of the resignation letter sent by the second petitioner to the Board of Directors of the Company dated 27.5.2008 shows that he has resigned from the Directorship of the Company and requested the Board of Directors to send a copy of Form 32 for filing the same to the office of the Registrar of Companies. Annexure III the extract of the minutes of the meeting of the Board of Director held on 27.5.2008 shows that resignation of the second petitioner/second accused as the Director of the Company was accepted with effect from 27.5.2008. 5. Annexure IV and V copies of Dinakaran and Dinamalar Tamil Dailies dated 2.8.2009 show that public notice was issued by the Company, United Plantation Ltd, to the effect that third accused Crl.M.C.1686/2010 6 was dismissed from service of the Company with effect from 17.7.2009. When Annexure VII notice was issued by the second respondent, on dishonour of the cheque issued by the third accused as the authorised agent of the United Plantation Ltd, Annexure VIII and IX replies were respectively sent by petitioners 1 and 2 stating that first accused resigned from the Directorship of the Company on 1.4.1997 and second petitioner resigned from the Directorship on 27.5.2008 and therefore they have nothing to do with the Company. Annexure 10 complaint was filed thereafter alleging that an offence under sections 420, 468 and 471 of Indian Penal Code was committed. 6. As rightly pointed out by the learned counsel appearing for the petitioners, even if the entire allegations raised against the petitioners in Annexure 10 complaint are accepted, an offence under sections 468 or 471 of Indian Penal Code is not attracted. The complaint does not even disclose which is the forged document allegedly Crl.M.C.1686/2010 7 created or used as genuine. Learned counsel appearing for the second respondent submitted that in the light of the contentions of the petitioners, they could not have been the Managing Director or Director of the Company on 13.10.2008 and in such circumstances, the notarised copy of the authority allegedly executed on 13.10.2008 could only be a forged document. But when Annexure 10 complaint does not disclose that it is the said power of authority executed on 13.10.2008 which is alleged to be the forged document, and was used as genuine and when even the details of the forged documents was not disclosed on Annexure 10 complaint the learned Magistrate could not have taken cognizance of the offences under sections 468 and 471 of Indian Penal Code. Hence said cognizance taken on those offences can only be quashed. 7. Then the question is whether an offence under section 420 of Indian Penal Code is attracted. if we are to accept the contentions Crl.M.C.1686/2010 8 raised in Annexure 10 as such, the case is that a lease agreement was entered into by the second respondent with the Company whereunder second respondent was permitted to collect tea leaves from the Estate of the Company for a period of three years. That agreement was entered into on 29.11.2008. That agreement was not seen produced before the learned Magistrate. As per the complaint, Rs.1,00,000/- was paid under the agreement on 29.11.2008 and Rs.6,00,000/- within one week from 29.11.2008. Therefore as per the complaint, the money due under the lease agreement was paid before the expiry of one week from 29.11.2008. There is no allegation in Annexure 10 complaint that the said agreement was executed by petitioners 1 and 2. On the other hand, a reading of the complaint reveals that the agreement was entered into by the second respondent with the Company and for the Company the third accused has acted as its authorised agent. If that be the case, the further allegation in the complaint that Crl.M.C.1686/2010 9 after the lease agreement was cancelled, accused 1 and 2 induced the second respondent to believe that third accused is the authorised agent cannot be correct because when the agreement itself was entered into with the third accused as the authorised agent, there is no necessity for a subsequent inducement as alleged in the complaint. Moreover, when there is no case in the complaint that when the lease agreement was entered into and second respondent parted with the money there was an intention for the petitioners to cheat, it cannot be said that an offence under section 420 of Indian Penal Code is attracted. Learned counsel appearing for the petitioners pointed out that in the last paragraph disclosing the facts of the case, it is alleged that after receipt of the reply second respondent came to know that the accused persons made representations inducing the complainant to part with money with the dishonest intention of cheating and issued cheque for Rs.6,30,000/- suppressing material facts those Crl.M.C.1686/2010 10 allegations are also insufficient to attract an offence under section 420 of Indian Penal Code against the petitioners. In such circumstances, continuation of the prosecution as against petitioners 1 and 2 can only be quashed. Though learned counsel appearing for the second respondent relied on the decision of the Supreme Court in Venkateshwaran and another v. M/s.Singaravel Yarn Traders (2009 KHC 741), it has no application on the facts of the case. Petition is allowed. Annexure A11 F.I.R as against petitioners 1 and 2 the accused 1 and 2 in Crime No.199/2009 of Edavanna Police Station is quashed. It is made clear that the case could be investigated as against the third accused. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006