Apple a Day Properties Pvt.Ltd. Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY,THE16H DAY OF JULY201425TH ASHADHA, 1936 Crl.MC.No. 2275 of 2010 ( ) ---------------------------- CRIME NO.485/2010 OF PALARIVATTOM POLICESTATION PETITIONER(S)/ACCUSED1O3 -------------------------- 1. APPLE A DAY PROPERTIES PVT.LTD. A COMPANY INCORPORATED UNDER COMPANIES ACT WITH ITS REGISTERED OFFICE AT APPLE TOWER, N.H.BYE-PASS PALARIVATTOM, EDAPPALLY PO, COCHIN-24.

2. K.A.SAJU, MANAGING DIRECTOR, APPLE A DAY PROPERTIES PVT.LTD., APPLE TOWER N.H.BYE-PASS, PALARIVATTOM, EDAPPALLY PO, COCHIN-24 3. RAJEEVKUMAR CHERUVARA, DIRECTOR, APPLE A DAY PROPERTIES PVT. LTD., APPLE TOWER, N.H.BYE-PASS, PALARIVATTOM, EDAPPALLY P.O.,COCHIN-24. BY ADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.P.MARTIN JOSE SRI.P.PRIJITH RESPONDENT(S)/STATE & COMPLAINANTS: ---------------------------- 1. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM2 A.SACHITH, AGED33 S/O.N.ANIRUDHAN, "KARTHIKA" NEAR Y.M.C.A, ALAPPUZHA, PIN-688 001 SANATHANAM WARD, THEKKANARAYANATTU MURI ARYAD SOUTH VILLAGE, AMBALAPPUZHATALUK, ALAPPUZHA.

3. G.SUNITHA, AGED36 D/O.N.ANIRUDHAN, "KARTHIKA" NEAR Y.M.C.A, ALAPPUZHA, PIN-688 001 SANATHANAM WARD, THEKKANARAYANATTU MURI ARYAD SOUTH VILLAGE, AMBALAPPUZHATALUK, ALAPPUZHA. R2 & R3 BY ADV. SRI.S.RAJEEV R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1607-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.2275/2010 APPENDIX PETITIONERS' EXHIBITS: ANNEXURE-I PICTURES SHOWING THE COMPLETED CONSTRUCTION ANNEXURE II TRUE COPY OF SALE DEED NO.2541/06 DATED27.7.2006 ANNEXURE III TRUE COPY OF AGREEMENT FOR CONSTRUCTION WITH SAJITH AND SUNITHA ANNEXURE IV TRUE COPY OF JUDGMENT

IN WP(C) NO.36605/2007 ANNEXURE V TRUE COPY OF THE ORDER

DATED11.4.2008 OF THE REVENUE DIVISIONAL OFFICER, FORT COCHIN ANNEXURE VI TRUE COPY OF DETAILS OF PAYMENT OF INTEREST MADE BY THE PETITIONERS ON BEHALF OF THE FEDERAL BANK FOR THE LOAN AVAILABED BY RESPONENTS2AND3ANNEXURE VII CERTIFIED COPY OF FIR IN CRIME NO.485/2010 OF PALARIVATTOM POLICE STATION. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// A.HARIPRASAD, J.

-------------------------------------- Crl.M.C. No.2275 of 2010 -------------------------------------- Dated this the 16th day of July, 2014. ORDER

Petitioner requests for invocation of the power of this Court under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.") to quash Annexure-VII first information statement and all proceedings in Crime No.485 of 2010 of Palarivattom Police Station.

2. Even though the petition was filed through counsel, they reported to have relinquished the vakkalath. Heard the learned Public Prosecutor and the learned counsel appearing for respondents 2 and 3/defacto complainants.

3. At the time of hearing, attention of this Court was drawn to a report dated 06.06.2014 submitted by the Sub Inspector of Police, Palarivattom. It is seen from the report that the above crime registered under Sections 406, 420 and 120B read with Section 34 of the Indian Penal Code (in short, "IPC") was investigated upon and a final report was filed before the concerned court requesting to drop further action. Learned Public Prosecutor produced a copy of the final report. It is seen from the final report that the accused persons, who are builders and developers, agreed to return the money received from the prospective buyers of Crl.MC No.2275/2010 2 apartments in four installments and on the basis of that agreement, the Police wanted to drop the action in the criminal case. Therefore, to that effect, a final report has been submitted before the court below.

4. Learned counsel for respondents 2 and 3 submitted that the entire procedure adopted by the Investigating Officer is wrong. To rest that contention, a decision of this Court in Yesudas v. S.I.of Police (2008 (1) KLT245 is pressed into service. The offences alleged in this case are compoundable only with the permission of the court. In Yesudas's case (supra), learned Single Judge has expressed the view as follows: "15. Where the offence is one falling under S.320(2) Cr.P.C., the police officer, if he is satisfied that there is willing and voluntary composition, must submit a report to the court seeking orders of the Court as to whether leave is granted or not. In that event also, notice will have to be ordered by the Court to the victim and appropriate decision taken on the question whether leave under S.320(2) Cr.P.C. deserves to be granted or not. Appropriate orders shall then be passed by the Court.

16. In both cases (S.320(1) and 320(2) Cr.P.C.) depending on the orders of the Court, investigation shall be closed or continued by the Investigating Officer.

17. The mere fact that the victim and/or the Crl.MC No.2275/2010 3 accused have the option of going before the police to report composition, it does not take away their right to approach the Magistrate seeking composition of offences falling under S.320(1) or 320(2) Cr.P.C. In such event, the Magistrate will certainly have to order notice to the Investigating Officer and after hearing him also appropriate decision will have to be taken by the learned Magistrate on the question of accepting the composition as also on the question of grant of leave under S. 320 (2) Cr.P.C. Appropriate orders under S.320 Cr.P.C. will then have to be passed by the learned Magistrate." 5. Considering the subsequent developments, I am of the view that the relief claimed in the petition cannot be allowed. However, the learned Magistrate is bound to issue notice to the defacto complainants as required by the dictum laid down by the Supreme Court in Bhagwant Singh v. Commissioner of Police and another (AIR1985SC1285. The principle of law stated therein is as follows: "In a case where the Magistrate to whom a report is forwarded under sub-sec. (2) of S. 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the Crl.MC No.2275/2010 4 information and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Criminal P.C. or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the F.I.R. But, even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report." 6. Respondents 2 and 3 are entitled to appear before the concerned Magistrate Court on receipt of notice and request the court not to accept the final report. I find no prejudice will be caused to respondents 2 and 3 in that event. In the result, the Crl.M.C. is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. cks