IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1686 of 2010()
1. K.C.PALANISAMI, S/O.CHENNIAPPA GOUNDER,
... Petitioner
2. K.K.SIVAKUMAR, S/O.A.KRISHNASWAMY,
Vs
1. STATE OF KERALA,
... Respondent
2. N.SAKARIYA,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.P.VENUGOPAL (1086/92)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/09/2010
O R D E R
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