IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.MC.No. 4438 of 2010() --------------------------------------- (CRIME NO.560/2009 OF TELLICHERRY POLICE STATION) PETITIONER/ACCUSED: --------------------------------- 1. DR5.M.C.MOHAN,PRESIDENT,JAYCEE SOCIETY FOR REHABILITATION OF THE HANDICAPPED,THIRUVANGAD, TELLICHERRY 670 103,KERALA. 2. KRISHNA KUMAR.G, SECRETARY, DO. 3. K.C.ABDUL SALEEM,TREASURER, DO. BY ADVS. SRI.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY STATION HOUSE OFFICER,TELLICHERRY POLICE STATION,KANNUR DISTRICT(CRIME NO.560/2009) REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. M.M.AJAYAN,S/O.PADMANABHAN,SHINE STAR AGENCIES,SHAKHAS ARCADE, NEAR FLY OVER GOODS SHED ROAD, TELLICHERRY, PIN 670 101. R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA R2 BY ADV. SMT.SHAMEENA SALAHUDHEEN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4438 of 2010 ==================================== Dated this the 17th day of March, 2011 O R D E R At a time when on the complaint (Annexure-8) preferred by the second respondent the Thalasery police registered Crime No.560 of 2009 (Annexure-A8 is the FIR), petitioners who are the office bearers of Jaycee Society for Rehabilitation of the Handicapped, Thiruvangad, Thalassery (for short, “the Society”) approached this Court with Crl. M.C. No.115 of 2010 to quash the FIR against them. Notice was ordered to the respondents in that case and in the meantime the police completed investigation and submitted final report (Annexure-12) alleging that petitioners committed offence punishable under Section 420 read with Sec.34 of the Indian Penal Code. Based on the final report learned Judicial First Class Magistrate, Thalassery took cognizance of the offence and filed C.C. No.62 of 2010 and issued process to the petitioners. In this proceeding petitioners challenge Annexure-12, final report, cognizance taken and proceeding against them in C.C. No.62 of 2010. I have heard learned counsel for petitioners, respondent No.2 and the learned Public Prosecutor. CRL.M.C. No.4438 of 2010 -: 2 :- 2. Offence attributed to the petitioners in Annexure-12, final report is that petitioners being the office bearers of the Society based on the permission granted by the Director of Public Instruction (for short, “the DPI”) received quotation from various persons including the second respondent for purchase of plastic chairs, second respondent submitted quotation for the lowest amount (`35370/-), it was accepted by the Society and thereafter petitioners on account of refusal of second respondent to pay commission to them accepted quotation of another establishment and purchased plastic chairs from that concern on 24.04.2009 and thereby cheated the second respondent. Learned counsel for the petitioners contended that allegations are incorrect as revealed from the documents produced by petitioners and appended to the petition and at any rate even if allegations are accepted in toto that does not involve any offence of cheating under Sec.415 of the IPC. Learned counsel referred to the various documents produced along with the petition. Learned counsel for the second respondent contended that it was after accepting quotation submitted by the second respondent for the lowest amount that petitioners chose to accept another quotation submitted by another concern without sanction from the DPI and CRL.M.C. No.4438 of 2010 -: 3 :- that involved offence of cheating as the quotation of second respondent after having been accepted was not acted upon. Learned counsel invited my attention to Ext.R2(iii), report submitted by the Deputy Director of Education, Kannur to the Secretary to the Chief Minister. 3. Section 415 of the IPC defines the offence of cheating and it involves inducing any person by deceiving such person fraudulently or dishonestly to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. When cheating is coupled with delivery of property the offence is punishable under Section 420 of the IPC. 4. It is not disputed that by Annexure-1, order dated 07.07.2009 the DPI had granted permission to various establishments including the Society to purchase plastic chairs and other items. The said order directed that the amount allotted for the purpose to each concern shall be withdrawn by them and deposited in a separate account, the amount is to be CRL.M.C. No.4438 of 2010 -: 4 :- utilized for the purpose earmarked and that the person receiving the amount has to maintain proper account for the same. Articles are to be purchased for the lowest quotation submitted. In the light of Annexure-1, order, the Society met on July 20, 2009 and decided as stated in Annexure-2. The Society resolved to open a separate account with the State Bank of India, Thalassery in the name of the Society for utilizing the funds (made available under Annexure-1, order). The meeting also ratified decision of the Principal of the School run by the Society in inviting quotation for purchase of movable items under the Grand in aid received as per Annexure-1, order. Principal of the School invited quotations from various persons including the second respondent, Annexure-3 is the quotation submitted by the second respondent. He quoted to supply plastic items mentioned in Annexure-A3 for a total sum of Rs.35,370/- but according to the petitioners without mentioning the brand of the articles quoted to be supplied. The Committee of the Society met on 28.07.2009 and considered the quotations as seen from Annexure-4. Item 8 in Annexure-4 is the quotation submitted by the second respondent. Item 18 is the quotation submitted by M/s. Home N Office, Thalassery for supply of computers/periferals CRL.M.C. No.4438 of 2010 -: 5 :- and Laptop. The Society was dissatisfied with the quotations submitted by the second respondent and M/s.Home N Office. Accordingly the Society decided to call for explanation from M/s.Home N Office with regard to the discrepancy they noticed in the quotation submitted by that agency. The meeting expressed concern regarding the plastic furniture quoted by the second respondent (item No.8 in Annexure-4) due to experience of chairs toppling over as the legs were not strong enough. This apprehension was made as the students who were to use the chairs were intellectually challenged and had to be protected. However, consensus was that branded furniture was safe. The President of the Society suggested to ask for a clarification from the second respondent regarding the brand. It was also decided to call for quotation for supply of plastic chairs from one more dealer of the specified item. Accordingly quotation was invited from M/s.Fortune Distributors who submitted Annexure-5, quotation dated 05.08.2009 for `31,336 (as against the quotation submitted by the second respondent (Annexure-3) for `35,370). In Annexure-5, M/s. Fortune Distributors gave details of the furniture including the brand name quoted to be supplied. The Society met on 31.08.2009 and took certain decisions as revealed from CRL.M.C. No.4438 of 2010 -: 6 :- Annexure-6. The meeting discussed the quotations in detail and resolved to accept the quotation submitted by M/s. Fortune Distributors for `31,360 (in respect of the plastic chairs). It was also resolved “to reject the quotation of Shine Star Agencies since they had not sent any clarification regarding the brand of furniture (plastic) they had quoted”. What I understand from the above statement is that since the second respondent failed to give the clarification sought for as resolved in Annexure-4, the Society decided to reject its quotation and accepted the quotation submitted by M/s.Fortune Distributors stating the brand name and for an amount less than quoted by the second respondent. 5. I shall refer to Annexure R2(iii) relied on by learned counsel for the second respondent. That, I said is a report dated 16.10.2009 submitted by the Deputy Director of Education to the Secretary to the Chief Minister, Thiruvananthapuram. In paragraph 3 it is stated that in the meeting of the Society held on 31.08.2009 (as revealed from Annexure-6) it was decided to ‘cancel’ the quotation submitted by the second respondent and that before inviting fresh quotations permission of DPI was not obtained. Learned counsel submitted that Annexure R2(iii) would show that quotation submitted by the second respondent CRL.M.C. No.4438 of 2010 -: 7 :- was accepted by the Society and later it was cancelled, according to the learned counsel as the second respondent failed to pay commission as demanded by petitioners. 6. I find myself unable to accept the said contention of learned counsel. True that the word ‘cancel’ is used by the Deputy Director of Education in R2(iii), report. But going by Annexure-6 it is seen that the decision of the Society was to “reject the quotation” of the second respondent (which had not been accepted) and not to cancel the quotation which was already accepted and acted upon. 7. I must also bear in mind that the lowest quotation for plastic chairs was of M/s. Fortune Distributors. That was accepted by the Society which in turn benefited the Government since the quotation submitted by the second respondent was for `35,370/- and the quotation of M/s.Fortune Distributors was for `31,336/-. 8. A quotation becomes binding contract so far as the person making the quotation is concerned only when its acceptance is communicated to him. Going through the records I do not find anything to show that the quotation submitted by the second respondent was either accepted or any such CRL.M.C. No.4438 of 2010 -: 8 :- communication was given to the second respondent. There is also no material on record to show that there was any inducement given to the second respondent to place quotation and it was based on any representation or make belief on the part of petitioners as if quotation of second respondent would be accepted that the latter placed the quotation. On going through the records I find that there is only a refusal to accept quotation submitted by the second respondent whatever be the reason thereof, right or wrong and that cannot amount to an offence punishable under Section 417 or 420 of the IPC. If the second respondent has any grievance as to the legality or otherwise of rejection of his quotation, remedy is not before the criminal court but before a civil court. 9. I am persuaded to think that materials on record do not make out any case against petitioners in which case the complaint, registration of the case and the final report are nothing but an abuse of process of the Court. This Court is therefore required to interfere under Section 482 of the Code. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-12, final report in Crime No.560 of 2009 of Thalassery police station, cognizance taken and all proceeding in C.C.No.62 CRL.M.C. No.4438 of 2010 -: 9 :- of 2010 of the court of learned Judicial First Class Magistrate, Thalassery against petitioners are quashed without prejudice to the other rights if any of second respondent to agitate his grievance before the civil forum. THOMAS P. JOSEPH, JUDGE. vsv