K GOPINAIR Vs. K RAMUKUTTY

JUDGEMENT

(1.) OUT of the three petitioners involved in Crl.M.C. 3149/1999, petitioners 1 and 3 are the petitioners in Crl.M.C. 3149/1999. The said two petitioners were the former Managing Director and Manager respectively of the Kanipayoor Hire purchase Company (P) Ltd. Which is a registered company. The second petitioner in Crl.M.C. 3149/1999 was a former Director of the said company. The prayers in both the cases is to quash proceedings pending before the J.C.M.Court, Kunnamkulam against the respective petitioners.. (2).Based on complaints filed by the respective first respondents in these two cases before the J.C.M.Kunnamkulam, investigation was conducted by the Kunnamkulam Polic after reference to the police was made under Section 156(3) of the Cr,P.C.Thereafter charge was laid by the police in both the cases alleging the offence under section 420 read with section 34 of the I.P.C, (3) The learned counsel for the petitioner submitted that the grievance projected in the complaint is only that refund on fixed deposit receipts issued by the company were not made, which discloses only a civil dispute based on creditor- debtor relationship and that the criminal court has no jurisdiction to intervene in asuch a matter even assuming that all the averments in the complaints are correct. It is pointed out in this regard that the ingredients of the offence under section 420 of the I.P.C . Which alone is alleged against the petitioner are not evident in the complaint. Yet another submission is that the complaints have no case that the deposits were made pursuant to any solicitation made by the petitioners or by the company itself. Another aspect highlighted is the fact that as on the date of complaint the present petitioners had ceased to be Director and Manager respectively and that they had no domination over the assets of the company. (4)The learned counsel for the first respondent in these cases submitted that quashing of a charge as sought for by the petitioners is a serious matter and that it is only in rare case that the court would intervene and proceed to stifle the prosecution. Accordance to the counsel to the counsel, for considering the question of quashing charge the averments in the complaint alone are to be looked into. With regard to the want of ingredients relating to offence under Section 420 of the I.P.C. alleged for amendment of the charge during the pendency of the case and that even charge relating to criminal breach of trust could be raised when the court takes up the case for framing charges. (5) It is clear from the decisions in Choince canning Co Ltd. V. Ramachandran (1998 (1) KLT SN 36 (case No. 67), A. G. Abraham v. State of Kerala ( (1987 (2) KLT 458) and Barja v. Meetal Ummi (1985 KLT 532) that the consideration of the question of quashing charge has to rest merely on the allegations in the complaint and that other documentary evidence should not be taken into account at this stage. What is evident from the complaints filed in these cases is that at the time when the complainants met the first accused at his residence, accused Nos 1 to 4, pursuant to their common intention of cheating the complainant encouraged them to deposit amounts in the company and it was based thereon that deposits were made. It is also alleged that the beneficiaries of the deposits are the accused and that the failure on the part of the accused to repay the amount with the offered interest establishes the offences alleged. (6)It is true that there is no case for the complainant that the amounts received from the complainants were diverted directly for any other purpose. It is also admitted that fixed deposit receipts assuring the repayment of the amount with interest at 18% were issued by the company to the complainant. No doubt, a debtor-creditor relationship comes into being with the issuance of the fixed deposit receipt. However, that does not mean that there is no scope for maintaining complaints of the present nature.. (7) A bench of this court had occasion to consider the same question in A. G. abragam v. State of Kerala (1998 (20 KLT 458) where the accused were not legally permitted to do banking business; but they made publication offering substantial interst and soliciting deposits as though they were bankers. It was contended that what was evident from the deposit receipts was only creation of a civil liability and that the complaint alleging offence under Section 406 of the I..P.C. would that after accepting the deposits the accused should not be allowed to flout the law by relying on niceties, technicalities and intricacies of law; that the depositors, when they parted with their money expected return of the money on demand after completion of the term and that if there was failure to return the amount, prima facie, the offence under section 406 of the I.P.C. of the I.P.C. would be revealed. (8) I am aware that in the present case offence under section 406 if the I.P.C. is not alleged and that only offence under section 420 of the I.P.C. is raised. However, there is merit in the contention of the first respondent that this is not a matter to be considered at this stage because the court can, while framing charges always alter or amend the charged provisions contained in the final report. It may well be possible therefore that at the time when the court frames the charge it may think it propet to include the offence under section 406 of the I.P.C. as well in case there is sufficient justification to do so basedn on the averments in the complaint. When there is an allegation that the petitioners were lured into handing over their money assuring high interest and that there was failure to return the money the petitioners cannot be heard to contend that there is no justification at all for a criminal case to be proceeded with against them. (9) It may be that the petitioners have no responsibility for administration of the company now .that however ,does not appear to be of importance .if the contention of the petitioners is to be accepted ,of all cases of alleged crime of the nature one could flout the law by resigning frsom the office releated to the debtor company soon after diverting to fund to the own adventage which acts may be done during the period when ther where in power .such contetion cannot be considered in this stage . (10) The cirscumstance in which court juistified in quashing charges are well settled .if the allegations set out in thes complaints do not constitute the offence of which orginance is taken by the magistrate or is of such nature that is reveals no offence ,it will be open to this court to quash the same . however a details analyisils of thes case before the trail to find out wheather the case would end in conviction or not is not expected . the complaints has to read as whole and if it appears, on the conserdation of the allegations in the light of the sworn statement of the complaint that the ingredients of criminial offence are disclosed and that there is no material to show that the complaints is malafide or vexatious ,there would be no justification for interference by the high court in the proceeding of the trial court based on section 482 of the cr.p.c (11) In crl.m.c.3100/1999 it is pointed out thet the complaints are earlier approached the consumer disputes redressal forum seeking return of the amount and that therewas no averment in that case with regard to attempt on the part of the company or the present petitioners to cheat the complaints which renders the presents contentions invalid and malafied . There is absolutely to substance in this argument. Based on the same transaction in this argument. Based on the same transaction one can have very many cause of action which could be worked out in different fora. The pleadings to be raised for invoking one such remedy may not be the relevant for yet another. It is not expected that a persons should mention all the allegation before each such form irrespective of the nature of the jurisdiction that is sought to be invoked before the particular authority. Viewed from this perspective non-mention of the ingredients with regard to the offence of cheating or criminal breach of trust in Annexure-A complaint in these cases does not appear to be of any significance while considering the question proceedings initiated pursuant to the police charge. (12) In view of the above position of law, I find no justification for invoking powers under Section 482 of the Cr.P.C. to quash the proceedings pending before the J..C.M, KunnamKulam in these two cases. The court will proceed with the trial independently and in accordance with law and dispose of the matter unhampered by any of the observations contained in this order.