IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 578 of 2006()
1. VINOD METHA,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SUB INSPECTOR OF POLICE,
3. J.S.PREM,
For Petitioner :SRI.V.P.MOHAMMED NIYAZ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :24/02/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.578 OF 2006
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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