IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.MC.No. 2683 of 2011() ------------------------- CC.119/2011 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... PETITIONER(S): ACCUSED ---------------------- 1. VIJAY SANKERWAR, CHAIRMAN & MANAGING DIRECTOR, VRL LOGISTICS LTD., GIRI RAJ ANNEX, CIRCUIT HOUSE, HUBLI-580029, KARNATAKA. 2. K.H. HALAIAH, REGIONAL MANAGER, VRL LOGISTICS LTD., REGIONAL OFFICE, TATA COFFEE LTD. COMPOUND, BUNDAR, MANGALORE-575001, KARNATKA. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.T.K.SHAJAHAN SRI.P.V.BALAKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- 1. K.N.N.UNNI, S/O.K.N.NARAYANAN NAMBOOTHIRI, KAVIYAPILLY MANA, CHERANELLUR P.O, KOCHI-682 034. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.CHANDRASEKHAR FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2683 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1 : COPY OF THE AGENCY AGREEMENT DTD.25.5.1999 ANNEXURE A2: COPY OF THE DEPOSITION OF CW1 ANNEXURE A2(A) : COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A2 ANNEXURE A3: COPY OF THE DEPOSITION OF CW2 ANNEXURE A3(A) : COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A3 ANNEXURE A4: COPY OF THE COMPLAINT IN C.C.NO.119 OF 2011 ANNEXURE A5: COPY OF THE ORDER ANNEXURE A6: COPY OF THE PLAINT IN O.S NO.207 OF 2010 ANNEXURE A7: COPY OF THE WRITTEN STATEMENT IN O.S.NO.207 OF 2010 RESPONDENT'S ANNEXURES: ANNEXURE R1(A) : COPY OF FINAL REPORT IN CRIME NO.547/2009 ANNEXURE R1(B) : COPY OF COMPLAINT DTD.22.10.2009 ANNEXURE R1(C): COPY OF FIR IN CRIME NO.547/2009 //TRUE COPY// P.A TO JUDGE ab N.K.BALAKRISHNAN, J ------------------------------------------------- Crl.M.C. No.2683 of 2011 -------------------------------------------------- Dated this the 24th day of October, 2011 O R D E R The petitioners are the accused. A private complaint was filed against them alleging commission of offences under Sections 379 and 420 r/w Section 34 IPC. It was stated in the complaint that after conducting investigation, the complaint originally filed before the Police was referred stating that dispute is of a civil nature. Thereafter the private complaint was filed. The sworn statements of the complainant and one witness were recorded by the learned Magistrate and based on the same cognizance was taken against the accused. 2. Learned counsel for the petitioners/accused would submit that the court below did not apply its mind while taking cognizance especially in view of the fact that the investigating officer had filed the final report treating it as a dispute of civil nature. 3. An agency agreement was entered into between the complainant on the one hand and the company of which the 1st accused was the Manging Director and the 2nd accused, the Crl.M.C. No.2683 of 2011 2 Regional Manager. The complainant does not dispute the fact that Anneuxre A1 agreement was entered into with regard to the transaction mentioned in the complaint. Para 8 of the Annexure A1 agreement reads thus: “The agent shall strictly and promptly comply with all directions issued by the company from time to time in connection with the Bookings and Delivery of the goods, storage, submission of statements, documents and accounts. This agreement is without prejudice to the rights of the Company to continue booking and/or delivering the goods through their other branch office or offices as and when the circumstances warrant.” 4. According to the petitioners there was only principal and agent relationship between the petitioners and the complainant. The agency of the complainant was terminated as per the terms of the agreement. The books of accounts and the files relating to the business were to be returned to the complainant. The grievance of the complainant is that the books of accounts and the files were unauthorisedly taken away by the accused. That is the allegation made in the complaint with regard to the offence under Section 379. The learned counsel for the petitioners would submit that when the agency was terminated as per the terms of the agreement, the agent/complainant was bound to handover the entire charges of Crl.M.C. No.2683 of 2011 3 the branch including all the stock, accounts, closing cash balance as per cash statement, unused stationery etc. as on the date of taking over, without raising any objections. After termination of agency and taking over charge, the company is at liberty to continue the activities in the same premises atleast for a period of 60 days from the date of such termination or until alternative arrangements are made by the company whichever is later. These aspects referred to in Clause 12(b) and 12(c) of the agreement have been highlighted by the learned counsel for the petitioners. For all practical purposes the premises must be deemed to be that of the principal and when the agency is terminated, the articles, books of accounts etc. must be deemed to be that of the principal, it is argued. The learned counsel also referred to certain other provisions in the agreement in support of his submission that the only remedy open to the agent was to sue for settlement of accounts and for other reliefs before a competent civil court. In fact a suit was filed by the agent before the Sub Court, Kozhikode for such a relief. 5. According to the complainant since the agency was unauthorisedly terminated and since the accounts were not settled, he had suffered loss to the tune of lakhs of rupees. On Crl.M.C. No.2683 of 2011 4 going through the sworn statement itself, it is clear that in order to find out what was the actual amount due from the principal to the agent, settlement of accounts is absolutely necessary. The other allegation is that, the other agency business was also started by the accused company making use of the service of the complainant, but when the agency business was found to be flourishing or going on well and was profitable, the service of the complainant was terminated and such agency businesses were taken over by the principal and in that way also the complainant suffered huge loss. That also would give rise to cause of action to sue for damages or for other reliefs. 6. The learned counsel for the complainant would submit that since the books of accounts etc. were unauthorizedly taken away by the principal, the agent/complainant was not in a position to state precisely what is the actual amount due to him. For that also the complainant can have remedy through civil court. 7. Another complaint is that the principal has deducted a sum of Rs.4,19,826/- from the commission amount due to the complainant. That also according to him was unauthorizedly done. Again it has to be stated what is the actual amount due to Crl.M.C. No.2683 of 2011 5 the agent and what should have been paid to him after deducting the charges if any the principal was entitled to deduct, are the matters to be considered only in a comprehensive suit filed for that purpose. Since the suit filed for that purpose is already pending and since the allegation in the complaint do disclose only a civil action against the accused, it would be an abuse of the process of court to convert a claim made by the agent against the principal to a criminal case under Sections 379 and 420 r/w Section 34 IPC. Hence further proceedings in C.C.NO.119/2011 of the Chief Judicial Magistrate Court, Kozhikode is quashed. N.K.BALAKRISHNAN JUDGE ab