IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 Crl.MC.No. 3764 of 2010() ----------------------------------- ( FIR NO. 438/2010 OF PATTAMBI POLICE STATION) ------------------ PETITIONER(S): 1ST ACCUSED --------------------------------------------- M.P.UDAYAVARMAN, S/O.KUNJUKUTTY KOLPAD, ADVOCATE, UDAYAMANDIRAM, P.O.MELE PATTAMBI, PALAKKAD DISTRICT-679306. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): COMPLAINANT,ACCUSED 2&3 & STATE ------------------------------------------------------------------------------------ 1. C.K.SAROJINI, D/O.JANAKI AMMA, NALINI NIVAS, MELAKKAM, MANJERI, MALAPPURAM DISTRICT-676121. 2. C.VENUGOPALAN, S/O.KRISHNA MENON, ADVOCATE, ATTAYIL PALAKKAPARAMBIL HOUSE, P.O.PATTITHARA, PALAKKAD DISTRICT-679534. 3. PUTHUMANA KESAVAN, S/O.KUTTIKRISHNA MENON, DOCUMENT WRITER, MATHILAKAM VEEDU, P.O.MARUTHOOR, PATTAMBI, PALAKKAD DISTRICT-679306. 4. VEERAMANI, VEERAMANI TEXTILES, PATTAMBI, PALAKKAD-679303. 5. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.A.K.MADHAVAN UNNI R5 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3764 OF 2010 =========================== Dated this the 10th day of December,2010 ORDER Petitioner is the first accused in Crime 438/2010 of Pattambi Police Station registered on a complaint filed by first respondent before Judicial First Class Magistrate Court-I, Pattambi and sent for investigation under section 156(3) of Code of Criminal Procedure. Petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings against the petitioner contending that continuation of the proceedings is only an abuse of process of court and no offence is attracted as against the petitioner. 2. Learned senior counsel appearing for the petitioner and counsel appearing for first respondent were heard. Crl.M.C.3764/2010 2 3. The complaint filed by first respondent which form part of Annexure A1 F.I.R is to the effect that for realization of the amount due from the owners of Pattambi Veeramani Textile O.S.176/2008 and O.S.177/2008 were instituted through Advocate Bhaskaran Nair, Manjeri and on the applications filed under Rule 8 of Order 31 of Code of Civil Procedure, attachment before judgment of the movables of the textile, were ordered and Amin was deputed on 18.12.2008 for effecting attachment. But before attachment could be effected second accused junior advocate to the petitioner and third accused document writer and fourth accused the owner of Veeramoni Textile met Advocate Bhaskaran Nair at his residence at Manjeri and informed that they were sent by the petitioner and they are then having Rs.50,000/- only and the balance would be paid within three months and requested to withdraw the attachment. Advocate Bhaskaran Nair contacted the petitioner over phone petitioner also promised that the entire amount Crl.M.C.3764/2010 3 will be paid within three months. Petitioner had undertaken the amount will be paid as agreed. Accepting the promise, applications for attachment were withdrawn. It is alleged that on 16.12.2008 when petitioner contacted the counsel of the first respondent to withdraw the attachment, the counsel had refused and therefore on 18.12.2008 accused 2 to 4 went to the house of the counsel, as instructed by the petitioner and it was in the presence of son of the sister of the first respondent accused 2 to 4 talked with the counsel. It is alleged that after one week, when first respondent met the petitioner at his office at Pattambi and demanded the amount as promised, he promised that it will be paid soon and second accused would inform the first respondent as and when money is received. Though first respondent contacted the petitioner several times, he evaded from payment. It is alleged that by such conduct, first respondent was cheated by the accused in furtherance of their common intention and therefore Crl.M.C.3764/2010 4 they committed an offence under section 420 read with section 34 of Indian Penal Code. 4. The argument of the learned counsel appearing for the first respondent is that but for the inducement made by the petitioner the counsel who was appearing for the defendant in the suits, the petitions for attachment would not have been withdrawn and by inducing first respondent to withdraw the petitions for attachment, all the accused, including the petitioner, committed an offence under section 420 of Indian Penal Code. 5. Learned senior counsel appearing for the petitioner pointed out that even if the allegations in the complaint are accepted, no offence is attracted as against the petitioner. It is pointed out that case is that it was accused 2 to 4 who met the counsel appearing for the first respondent and promised to pay the amount, and petitioner has no contact whatsoever with the first respondent and in such circumstances it cannot be said that petitioner induced the first respondent and thereby Crl.M.C.3764/2010 5 cheated her. 6. Along with the counter affidavit, first respondent, has produced the counter affidavit of Advocate Bhaskaran Nair. The counter affidavit is to the effect that after the order of attachment was passed, counsel appearing for the defendant contacted Advocate Bhaskaran Nair and requested to withdraw the same on receipt of Rs.25,000/- and he stated that the amount is more than Rs.70 crores. The affidavit further disclosed that on the next morning petitioner sent his junior the second accused along with accused 3 and 4, and met him at his house at about 7.30 a.m. The second accused represented that petitioner sent them and they are prepared to pay Rs.50,000/- to the client of Advocate Bhasakaran Nair in two instalments within 10 days and the balance will be paid within three months. They represented that petitioner would undertake such payments, without fail and Advocate Bhaskaran Nair contacted Petitioner over phone and he said that defendants are his clients for the Crl.M.C.3764/2010 6 last 50 years and they are in difficulties and they should not be humiliated by attaching their shop. It is alleged that petitioner also stated that he would undertake and ensure balance payment, within three months. Believing the request of a senior member of the profession he moved an application on 18.12.2008 and thereby withdrew the petitions for interim attachment and inspite of the promise the amount was not paid. 7. Even if the allegations in the complaint and the facts stated by Advocate Bhaskaran Nair is accepted, the position is that first respondent instituted two suits against Veeramony textiles and orders of attachments wre passed in both the shits. Petitioner was the counsel appearing for the defendants. He conveyed the information that the defendants are in difficulties and they will pay Rs.50,000/- and Rs.25,000/- and requested counsel appearing for the first respondent Bhaskaran Nair to withdraw the petition for attachment. Advocate Bhaskaran Nair refused. Next Crl.M.C.3764/2010 7 morning accused 2 to 4 second accused being the junior to the petitioner went to the house of advocate Bhaskaran Nair and informed him that petitioner send them and defendants are prepared to pay R.50,000/- in two instalments and would pay the entire amount within three months. Advocate Bhaskaran Nair wanted a confirmation from the petitioner and contacted petitioner over phone. Petitioner assured that defendants should pay that amount.Acting on that representation Advocate Baskaran Nair moved petitions and applications for attachments were withdrawn. The allegation is that the promise was broken and the amount was not paid . Question is whether petitioner an Advocate appearing for respondents committed an offence under section 420 of Indian Penal code . 8. Inorder to attract an offence under section 420 of Indian Penal code, there should be a dishonest intention on the part of the petitioner, when he made a representation and induced the first respondent to withdrew the applications for Crl.M.C.3764/2010 8 attachment.There is no case for the first respondent that she ever met the petitioner.The only allegation is that on behalf of his clients, the defendants in the suit, the petitioner the advocate contacted Advocate Baskaran Nair who was appearing for the first respondent in the suit . Petitioner requested Advocate Bhaskaran Nair to withdraw the Petition conveying the willingness of the client to pay the portion of the amount and also the promised to pay the balance amount within three months. Accepting the representation to the counsel made by defendants, along with the junior of the petitioner, the counsel appearing for the first respondent had withdrawn the petition. Subsequently defendants did not pay the amount. On these basis it cannot be said that petitioner who is a counsel appearing for the defendants in the suit has committed an offence under section 420 of Indian Penal Code. Continuation of the proceedings as against the petitioner is only an abuse of process of court and hence it can only be quashed. Crl.M.C.3764/2010 9 Petition is allowed. Crime 438/2010 of Pattambi Police Station registered under Annexure A1 F.I.R as against petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006