IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 Crl.MC.No. 578 of 2006() ------------------------ CRMP.333/2006 of SESSIONS COURT, KOTTAYAM .................... PETITIONER: ACCUSED ------------------------- VINOD METHA, PROPRIETOR, METHA SURGICALS, PHILIP HOUSE, IIIRD FLOOR, NEAR PALLIPPURATH KAVU TEMPLE, KODIMATHA, KOTTAYAM, RESIDING AT ARCHANA HOUSE, OZHATHIL LANE, NAGAMPADAM, KOTTAYAM. BY ADV. SRI.V.P.MOHAMMED NIYAZ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, KOTTAYAM. 3. J.S.PREM, ANNAMATTAM SURGICAL CO. OF INDIA, B.1104 A, B 1104 B, JAWAHARLAL NEHRU INTERNATIONAL STADIUM, KALOOR, KOCHI, RESIDING AT SAYOOJYA HOUSE POWER HOUSE ROAD, PALARIVATTOM.P.O, COCHIN. PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN FOR R1 & R2 SRI.A.V.THOMAS FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/02/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4480/06 IN CRL.M.C.NO.578/06 //DISMISSED// 24.2.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.578 OF 2006 ----------------------------------------------------- DATED THIS THE 24TH DAY OF FEBRUARY , 2009 O R D E R This petition is filed under Section 482 of Cr.P.C. on 24.2.2006 with the prayer originally to quash Annexure A1 FIR and all further proceedings initiated against the petitioner in Crime No.580/05 of Kottayam West Police Station. Subsequently, this petition has been amended as per order dated 28.9.2006 in Crl.M.A.No.4479/06 by amending the prayer to quash Annexure A3 charge sheet and all further proceedings in C.C.No.302/06 pending on the file of the Court of Judicial First Class Magistrate- III, Kottayam. 2. The facts of the case stated in this petition are as follows: C.C.No.302/06 is filed against the petitioner herein on the basis of the complaint made by the de facto complainant, the 3rd respondent alleging offence under Section 420 of IPC. Copy of the FIR in Crime No.580/05 registered on 22.12.2005 before the Kottayam West Police Station along with the first information CRL.M.C.No.578/06 -2- statement of the de facto complainant is produced as Annexure A1. The case was investigated and final report filed before the Court of J.F.C.M.-III, Kottayam on 9.6.2006 which was taken on file by the learned Magistrate as C.C.No.302/06 on 15.6.2006 as revealed from the stamp affixed in Annexure A3. The allegation made against the petitioner in the FIR and in the final report is that the petitioner/accused with intend to deceive the de facto complainant, the 3rd respondent, who is an agent of Visco Company approached him and the de facto complainant was compelled to supply on the representation made by the accused surgical instruments to Deen Hospital at Punalur, worth Rs.3,76,598/-. The accused paid Rs.2,33,385/- as per demand draft and thereafter committed default of payment of the balance amount of Rs.1,43,213/- and thereby cheated the de facto complainant and committed offence under Section 420 of IPC. 3. The statement of facts of the case in C.C.No.302/06 as mentioned in this petition filed by the petitioner/accused before this Court is disputed by the 3rd respondent herein/the complainant and filed a detailed counter affidavit before this Court. The allegations made in the petition are denied by the 3rd respondent. It is specifically CRL.M.C.No.578/06 -3- contended by the 3rd respondent in the counter affidavit that 3rd respondent as the Manager of M/s Anamallais Surgical Co. of India engaged in the business of dealers in surgical instruments. The petitioner approached the 3rd respondent for supply of 26 numbers of fowlers hospital cots and 1 number of height adjustable stretcher. The written order was placed by the petitioner on 16.8.04 and an amount of Rs.50,000/- was paid on that date as advance. Annexure R3(a) is produced to substantiate the same. The proforma invoice issued to the petitioner on 16.8.04 is also produced as Annexure R3 (b). The 3rd respondent, as per the order placed by the petitioner in turn placed the order for supply of the goods to the manufacturer Steel Hospital Furniture, Umergom,Gujarat, as per invoices dated 25.1.2005 in favour of M/s Anamallais Surgical Co.of India for Rs.2,49,288/- and Rs,67,600/-, copies of which are produced as Annexures R3(c) and R3 (d). The goods sent by the manufacturer to be delivered at Punalur was received by the petitioner herein directly with the intention of cheating and defrauding the 3rd respondent and collected the goods by re-directing the truck along with the goods to Deen Hospital, Punalur. On coming to know of this fact and also the receipt of Rs.5,24,000/- directly by the petitioner from the Deen Hospital, Punalur, the 3rd CRL.M.C.No.578/06 -4- respondent preferred a complaint against the petitioner for the offence under Section 420 of IPC. The 3rd respondent has also produced letter of demand made by the 3rd respondent to the petitioner herein sent on 18.10.2005 demanding the balance payment of Rs.1,26,598.35 produced as Annexure R3(f), to which reply has been sent by the petitioner on 10.11.2005, produced as Annexure R3(g). It was only subsequently, the complaint was preferred by the de facto complainant alleging offence under Section 420 of IPC. It was also contended that there is no merit in the petition, which is liable to be dismissed with costs. 4. Heard the learned counsel appearing for the petitioner and the 3rd respondent. Heard the learned Public Prosecutor also. 5. It is submitted by the learned counsel appearing for the petitioner that there was business transaction between the petitioner and the 3rd respondent-defacto complainant. The fact that the petitioner placed orders for purchase of surgical instruments from the manufacturer through the 3rd respondent as per invoice dated 8.2.05 is also admitted. But, according to the learned counsel appearing for the petitioner, there was no intention of cheating and no fraud has been committed by the petitioner while placing the order to purchase the CRL.M.C.No.578/06 -5- surgical instruments from the 3rd respondent as alleged in the complaint. According to the learned counsel, an amount of Rs.2,33,385.35/- has been paid by the petitioner to the 3rd respondent in advance and if there is any dispute with regard to the balance amount, it is only a civil dispute and no sufficient ingredients are there to attract the offence under section 420 of IPC. There was no breach of contract between the petitioner and the 3rd respondent as alleged in the complaint. Therefore, continuance of the proceedings against the petitioner for the offence punishable under Section 420 of IPC is an abuse of process of court and is liable to be quashed in the interest of justice, it is submitted. 6. All these submissions made by the learned counsel for the petitioner has been disputed by the learned counsel for the 3rd respondent. According to the learned counsel, sufficient ingredients for the offence under Section 420 IPC are there in the first information statement given by the complainant as revealed from the FIR and the copy of the FI statement produced as Annexure A1 along with this petition. Admittedly, there was business transaction between the petitioner and the 3rd respondent. The cheating, misrepresentation, etc. by the petitioner as contended by the 3rd respondent will be CRL.M.C.No.578/06 -6- decided by the learned Magistrate after considering the evidence to be adduced on the side of the prosecution. This Court cannot come to a conclusion on those aspects. Whether fraudulent and dishonest intention was there to the accused from the very beginning of the transaction while placing the orders before the 3rd respondent for the supply of surgical instruments in favour of M/s Anamallais Surgical Co. of India to be delivered to Deen Hospital, Punalur and whether he can be convicted for that offence, etc. will also depend upon the evidence to be adduced on the side of the prosecution. The learned Magistrate has taken cognizance of the case on the satisfaction that prima facie case is made out against the petitioner and taken the case on file as C.C.No.302/06, which is pending before the Court of J.F.C.M.-III, Kottayam as revealed from Annexure A3. There is no grievance to the petitioner in this petition that no enquiry as contemplated under the Cr.P.C. has been conducted by the learned Magistrate while taking cognizance of that case. It is true that there is a finding of the learned Sessions Judge, Kottayam in Crl.M.P.No.333/06, the bail application filed by the petitioner, copy of which is produced as Annexure A2 that “the crucial question to be considered is whether the materials on record are sufficient to hold that there are reasonable grounds to CRL.M.C.No.578/06 -7- believe that the accused is answerable for an offence of cheating. On the basis of the materials at present it can be clearly found that this is a case of civil nature only”. That is only a finding of the learned Sessions Judge in the bail application filed by the petitioner herein and to consider whether bail can be granted to the petitioner and whether he can be released under Section 438 of Cr.P.C. which has no baring with the evidence and the disputed facts in the present case. Considering these aspects and on the basis of the documents produced by the petitioner and also by the 3rd respondent in this case, I find that sufficient ingredients are there to proceed against the petitioner which was already done by the learned Magistrate. Therefore, there is no ground in this petition to invoke the inherent jurisdiction of this Court as envisaged under Section 482 of Cr.P.C. and this petition is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn