Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE19H DAY OF NOVEMBER201428TH KARTHIKA, 1936 Crl.MC.No. 6100 of 2013 () --------------------------- CRIME NO. 1387/2013 OF KADAVANTHRA POLICE STATION , ERNAKULAM. PETITIONER(S)/ACCUSED: ------------------------------------------ C.K.VIJAYAN, AGED50YEARS, S/O.KRISHNANKUTTY, CHAIRMAN AND DIRECTOR, M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD, HAVING ITS REGISTERED OFFICE AT37991, 1ST FLOOR, EMMY SQUARE, S.A.ROAD, ELAMKULAM, COCHIN - 682 020. BY ADV. SRI.P.K.BABU. RESPONDENT(S)/COMPLAINANT : ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SUBHASH VASUDEVAN, S/O.VASUDEVAN, RESIDING AT FLAT NO.15C, DUKES SKYLINE IMPERIAL GARDEN, KALOOR, COCHIN - 682 017. R2 BY ADV. SRI.K.ANAND. R1 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1911-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 6100 of 2013 () --------------------------- APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------------- ANNEXURE-A : TRUE COPY OF MEMORANDUM OF UNDERSTANDING ENTERED INTO BETWEEN M/S.VIJAYA LUXURY HOUSING PROJECTS (PVT) LTD AND THE2D RESPONDENT ON195.2007. ANNEXURE-B : TRUE COPY OF FORM NO.32 FILED BY VIJAYA LUXURY HOUSING PROJECTS PVT.LTD BEFORE THE REGISTRAR OF COMPANIES. ANNEXURE-C : TRUE COPY OF RESOLUTION DATED273.2010 PASSED BY THE M/S.VIJAYA LUXURY HOUSING PROJECTS PVT.LTD. ANNEXURE-D : TRUE COPY OF VOUCHERS OF M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD. ANNEXURE-E : TRUE COPY OF FORM32SUBMITTED BY THE VIJAYA HOSPITALITY AND RESORTS LIMITED BEFORE THE REGISTRAR OF COMPANIES. ANNEXURE-F : TRUE COPY OF DETAILS OF PAYMENT GIVEN TO THE2D RESPONDENT FROM M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD. ANNEXURE-G : TRUE COPY OF DETAILS OF PAYMENT GIVEN TO THE2D RESPONDENT FROM M/S.VIJAYA HOSPITALITY AND RESORTS LTD. ANNEXURE-H : TRUE COPY OF RESOLUTION DATED212.2011 PASSED BY THE VIJAYA LUXURY HOUSING PROJECTS PVT.LTD. ANNEXURE-I : TRUE COPY OF SALE DEED NO.1123/12 DATED163.2012 EXECUTED BY THE2D RESPONDENT AS DIRECTOR OF THE M/S.VIJAYA LUXURY HOUSING PROJECTS PVT.LTD. ANNEXURE-J : TRUE COPY OF NOTICE DATED151.2013 ISSUED BY THE FEDERAL BANK LTD. ANNEXURE-K : TRUE COPY OF FORM32FILED BY THE VIJAYA HOSPITALITY AND RESORTS LTD BEFORE THE REGISTRAR OF COMPANIES. ANNEXURE-L : TRUE COPY OF AGREEMENT OF SALE EXECUTED BETWEEN M/S.VIJAYA LUXURY HOUSING (P) LTD AND THE2D RESPONDENT ON1810.2012. ANNEXURE-M : TRUE COPY OF SALE DEED NO.5412 OF 2012 OF ERNAKULAM S.R.O DATED2612.2012 EXECUTED IN FAVOUR OF2D RESPONDENT. Crl.MC.No. 6100 of 2013 () -2- ANNEXURE-N : TRUE COPY OF AUTHORIZATION DATED155.2013 ISSUED BY THE2D RESPONDENT. ANNEXURE-O : TRUE COPY OF AGREEMENT EXECUTED ON148.2013 BETWEEN M/S.VIJAYA LUXURY HOUSING PROJECTS (P) LTD AND2D RESPONDENT. ANNEXURE-P : TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE, KADAVANTHRA POLICE STATION ON2310.2013. ANNEXURE-Q : TRUE COPY OF LETTER DATED2410.2013 SUBMITTED BY THE2D RESPONDENT BEFORE THE VILLAGE OFFICER, ELAMKULAM VILLAGE. ANNEXURE-R : TRUE COPY OF COMPLAINT SUBMITTED BY VIJAYA LUXURY HOUSING PROJECTS PVT.LTD BEFORE THE CITY POLICE COMMISSIONER, COCHIN CITY ON511.2013 AND ACKNOWLEDGEMENT RECEIVED FROM CITY POLICE OFFICE, KOCHI. ANNEXURE-S : TRUE COPY OF O.S.NO.517 OF 2013 FILED BY THE2D RESPONDENT BEFORE THE SUB COURT, ERNAKULAM. ANNEXURE-T : TRUE COPY OF I.A.NO.5337 OF 2013 IN O.S.NO.517 OF 2013 FILED BY THE2D RESPONDENT BEFORE THE SUB COURT, ERNAKULAM. ANNEXURE-U : TRUE COPY OF F.I.R.ALONG WITH COVERING LETTER OF NRI TRUST AND COMPLAINT OF2D RESPONDENT. RESPONDENT(S)' EXHIBITS : --------------------------------------- R2(a) : TRUE COPY OF THE ORDER
DATED2211-2013 IN B.A NO.7741/2013. //TRUE COPY// P.A TO JUDGE amk A.HARIPRASAD, J.
------------------------------------------------ Crl.M.C No.6100 of 2013 ------------------------------------------------ Dated this the 19th day of November, 2014. ORDER
Petition filed under Section 482 Cr.P.C. Petitioner is the accused in Crime No.1387/2013 registered by Kadavanthra Police under Sections 406, 409, 420 and 506(1) I.P.C. Petitioner is a business man engaged in real estate, hotel projects etc. He is the Chairman and Director of M/s.Vijaya Luxuary Housing Project (P) Ltd., a company incorporated under the Companies Act, 1956. Company is engaged in construction of multi storied apartments. The company had purchased 47.2 cents of land at Jawahar Nagar, Kadavanthara and constructed multi storied residential apartments. The company owns other establishments at other places. M/s.Vijaya Hospitality and Resorts Ltd. has a subsidiary company namely West Coast Homes (P) Ltd., which also owns property. It is also submitted that the petitioner is the Chairman and Director of M/s.New Vijaya Steels and Alloys (P) Ltd. He is the Chairman and Director of M/s.Daphne Hotels and Crl.M.C No.6100 of 2013 2 Tourism (P) Ltd. He is engaged in other businesses as well. The defacto complainant expressed his desire to take up 12% share in M/s.Vijaya Luxury Housing Project (P) Ltd. The memorandum of understanding entered into between the petitioner and the defecto complainant is Annexure A. Annexure B is the Form No.32, inducting the second respondent/defacto complainant as Director in the company. Annexure C is the resolution dated 27-03-2010 authorizing the defacto complainant to draw a monthly remuneration of Rs.50,000/- from 01-03-2010. Annexure D (18 vouchers) evidence the payments of the said amount. The defacto complainant wanted to increase his investment in shares to 13% and also to increase his other investment to Rs.3.4 crores. The company passed a resolution dated 02-12-2011 authorizing the defacto complainant to execute and present sale deeds in respect of the flats and undivided shares of land to purchasers. Annexure H Crl.M.C No.6100 of 2013 3 document shows the execution of a sale deed by the defacto complainant for and on behalf of the company. In the meantime, Federal Bank Ltd. issued a notice to the company dated 15-01-2013 under the SARFEASI Act demanding money. Annexure J is the notice. Because of the sudden fall in the business of the company, the defacto complainant resigned from the company with effect from 18-09-2012 and Form No.32 was filed before the Registrar of Companies (Annexure K). Thereafter, dispute arose between the parties and finally an agreement was executed on 14-08-2013 between the company on one hand and the defacto complainant/second respondent on the other, agreeing on terms and conditions of settlement. It is Annexure O. It is also revealed from the documents that the parties became more enimical to one another and the defacto complainant filed a suit before Sub Court, Ernakulam for recovery of money. It is also an admitted fact that he obtained Crl.M.C No.6100 of 2013 4 attachment over the properties belonging to the company.
2. Heard the learned counsel for the revision petitioner and the learned counsel for the defacto complainant. Learned Public Prosecutor is also heard.
3. Learned counsel for the petitioner submitted that this is predominantly a civil dispute and no criminal prosecution can be maintained in the light of the above said facts. It is further contended that the entire complaint filed by the defacto complainant before N.R.I Trust Centre, which was in turn forwarded to Inspector General of Police and then to Commissioner of Police, does not reveal any offence.
4. Per contra, learned counsel for the defacto complainant submitted that the petitioner clandestinely assigned the property belonging to the company. Even if the suit was decreed in his favour, due to nefarious attempts of the petitioner, no asset would be left behind for realizing in execution of the Crl.M.C No.6100 of 2013 5 decree. It is also submitted that the petitioner with an intention to cheat the defacto complainant took steps in violation of the terms in Annexure O agreement. Learned counsel for the petitioner strenuously contended that no offence of breach of trust either falling under Section 406 or 409 I.P.C is made out. Further, no offence of cheating can be discerned from the averments in the complaint. It may be too premature to make any observation on the allegations at this stage of investigation. The entire investigation has been stayed by this Court when the petition was admitted. I find that this is a fit case to permit the agency to complete the investigation.
5. Learned counsel for the petitioner places reliance on G.Sagar Suri and Another v. State of U.P and Others ((2000)2 S.C.C636 contend the following proposition. Firstly, power under Section 482 Cr.P.C can be invoked to quash an F.I.R in a appropriate case. Secondly, if the entire allegations in the Crl.M.C No.6100 of 2013 6 complaint does not make out any reason to hold that the petitioner is guilty of an offence under Section 406 or 409 or 420 I.P.C, the exercise should be treated as an abuse of the process of the court. It is to be noted here that normal rule is that the higher courts should be loathe in quashing the first information reports. I do not wish to pass any order on merit in this matter.
6. Learned counsel for the respondent/complainant contended that as per Annexure R2(a) order in Bail Application No.7741/2013 this Court directed the petitioner to surrender before the court. It is also alleged that the petitioner defied the directions and so far he has not surrendered. Learned counsel for the petitioner requested some more time for compliance of the directions in the order on Bail Application No.7741/2013 passed by this court.
7. Considering the facts that the case is at the initial Crl.M.C No.6100 of 2013 7 stage of the investigation, I find that the petitioner may again come before this court, if the investigation goes against him and culminates in laying a charge against him. Reckoning the submission of the learned counsel for the petitioner that the petitioner may be given some more time to surrender, I grant a month's time from today as a last chance for complying with the order passed by this court in Bail Application No.7741/2013. With this observation, Crl.M.C is disposed of. All pending interlocutory applications will stand dismissed. Sd/- A.HARIPRASAD, JUDGE. amk //True copy// P.A to Judge