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2018 DIGILAW 344 (KER)

Shajan Theruvath S/o Moidunni v. State of Kerala

2018-04-13

ANNIE JOHN

body2018
ORDER : The petitioner is the accused in C.C.No.456/2011 on the file of the Judicial First Class Magistrate Court-II, Kochi taken cognizance for offences punishable under Sections 405, 406, 409, 415, 417, 418 & 420 of the Indian Penal Code. The allegation in Annexure-B final report is that the accused is the owner of Bridge Way Furniture & Decor, a company engaged in contractual work at Abudabi, U.A.E. The accused gave sub contract on some work to the company named Liwa Electrical and Sanitary Contracting owned by the complainant. It is alleged that as per the agreement, the company of accused has done the entire work entrusted to him, but the petitioner is not making payment as per the contract and thereby committed a loss of Rs.33,70,18.50 U.A.E. Dirham, which come around Rs.43,81,240/-. The petitioner even after obtaining money from the building owners, refused to pay the amount to complainant and thereby committed cheating of the above said amount, is the further allegation. The allegation in Annexure-B will not constitute any criminal offence. The said allegations does not have ingredient of cheating and criminal breach of trust. As per the allegation, the offence was committed outside India, but there is no prior sanction obtained from the Central Government as per proviso to Section 188 of the Cr.P.C.to conduct inquiry or trial. Therefore, the petitioner prays for initiating Section 482 of the Cr.P.C. inorder to quash the entire proceedings. 2. The learned Public Prosecutor has objected and argued that the contract agreement was executed within India. So, prior sanction from the Central Government is not required. 3. Heard both sides. According to the petitioner's counsel, the 2nd respondent has filed a private complaint before the JFCM-II, Kochi as C.M.P.No.4420/2010, which was forwarded under Section 156(3) of the Cr.P.C. to the SHO, Mattanchery and Crime No. 1157/2010 was registered against him for the above said offences. The certified copy of the FIR is produced and marked as Annexure-A. Later, the crime was investigated by the Circle Inspector of Police, who after completing the investigation submitted a final report as against the petitioner for the offences cited supra. The learned Magistrate has accepted the final report and took cognizance for the offences as against the petitioner. The case was taken into file as C.C.No.456/2011. The learned Magistrate has accepted the final report and took cognizance for the offences as against the petitioner. The case was taken into file as C.C.No.456/2011. The certified copy of the final report is produced and marked as Annexure-B. According to the petitioner's counsel, the de facto complainant suppressed the real facts, misleading the court and influencing the police managed to file Annexure-B Final Report. In fact, the investigating officer has not conducted any investigation at Abudabi, where the alleged companies of both the accused and the de facto complainant are performing. The investigating officer has blindly relied on the documents produced by the de facto complainant and has submitted a final report, without even scrutinizing the authenticity of those documents. In fact, the alleged act of offence was committed at Abudabi, that is outside the jurisdiction of India. Therefore, the learned Magistrate is not empowered to conduct any “enquiry” into the case without prior sanction of the Central Government. Highly aggrieved by the above said act, the petitioner has approached this Court inorder to quash the entire proceedings. It was argued by the learned counsel for the petitioner that there was no question of cheating in this case. Section 405 of the IPC deals with criminal breach of trust, which defines that “in order to attract such offence, there must be entrustment of property or with any domain over property”. In order to attract Section 409 of the IPC, “there must be a breach of trust by public servant, or by banker, merchant or agent”. According to the petitioner's counsel, the petitioner is not a public servant, banker, merchant or agent, there is no such allegation in the final report and therefore, the said Section of offence will not stand against him. Inorder to attract Section 420 of the IPC, “there must be cheating and dishonest inducement of delivery of property”. So, Section 420 of the IPC is also not attracted in this case. According to the petitioner's counsel, the transaction is purely of civil in nature as it is based on an agreement. Inorder to substantiate these arguments, the learned counsel for the petitioner has cited a ruling held in Joseph Salvaraj A. v State of Gujarat and others [ AIR 2011 (SC) 2258 ], wherein it has held that “a mere failure to pay amount cannot attract offence under Indian Penal Code”. Inorder to substantiate these arguments, the learned counsel for the petitioner has cited a ruling held in Joseph Salvaraj A. v State of Gujarat and others [ AIR 2011 (SC) 2258 ], wherein it has held that “a mere failure to pay amount cannot attract offence under Indian Penal Code”. On the strength of this ruling he has argued that Annexure-B Final report is an abuse of process of law. Therefore, it is to be quashed. Again, he has cited a ruling held in Dalip Kaur & Others v. Jagnar Singh & another [ AIR 2009 SC 3191 ], wherein the Apex Court has held that “Breach of contract of an agreement for sale-Criminal Breach of Trust-Cheating-Civil dispute resulting from a breach of contract by non refunding the amount of advance-does not constitute an offence of cheating-Exercise of inherent jurisdiction of High Court-High Court not justified in dismissing the application for quashing FIR-Matter remitted back to High Court for fresh consideration” and the counsel for the petitioner has argued that there was no such element to attract breach of trust and it is purely civil in nature. He has also cited a ruling held in Nageshwar Prasad Singh v. Narayan Singh and another [ AIR 1999 SC 1480 ] wherein the Apex Court has held so and imposed compensatory cost against the complainant for raising vexatious complaint. “When a criminal proceeding manifestly attended with malafide or when the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the same can be quashed in exercise of the inherent powers available under Section 482 of the Cr.P.C”. The final argument of the learned counsel for the petitioner was that the Annexure B Final Report was filed without obtaining the sanction as contemplated under Section 188 of the Cr.P.C. According to the petitioner, the alleged offence was committed in Abudabi, which is outside the jurisdiction of India. In fact, Section 188 of the Cr.P.C. deals with the offences committed outside India. As per the proviso to Section 188 of the Cr.P.C.” Provided that, notwithstanding anything in any of the preceding sections of this chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government”. In fact, Section 188 of the Cr.P.C. deals with the offences committed outside India. As per the proviso to Section 188 of the Cr.P.C.” Provided that, notwithstanding anything in any of the preceding sections of this chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government”. According to the petitioner's counsel nowhere it was stated in Annexure-B Final Report that and it was filed after obtaining sanction from the Central Government. The learned Magistrate has also without applying his mind and without going through the provisions as contemplated under Section 188 of the Cr.P.C. has taken cognizance casually. In this connection, he has cited a ruling held in Padmarajan C.V. v. Government of Kerala and others [ 2009 (1) KHC 65 ], wherein it has held that “cases involving offences committed both within and outside India-No previous sanction of the Central Government obtained- Held Special Judge ought to have commenced enquiry only after getting prior sanction of Central Government as envisaged to the proviso to Section 188 of the Cr.P.C.”. It is true that as per Section 188 of the Cr.P.C. as decided in Mohamed Rafi v. State of Kerala [ 1994 (1) KLT 464 ] that no sanction of Central Government is necessary for conducting investigation in this case. So, the Kerala Police can conduct investigation into the offences committed abroad. While proviso to Section 188 of the Cr.P.C. requires sanction of the Central Government for the purpose of 'inquiry' and 'trial', the words 'deal with' in the main part must necessarily include at least 'inquiry' and 'trial'. Section 2(h) of the Cr.P.C. deals with investigation, which says that “the investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. So, on the strength of Section 2(h) of the Cr.P.C. the police is empowered to conduct investigation in any type of cases. In this case, the police has already filed Annexure-B Final Report before the Magistrate and the Magistrate has taken cognizance against the petitioner herein and at that time the petitioner has rushed to this Court by stating that charge has been laid down by the police without obtaining prior sanction of the Central Government. In this case, the police has already filed Annexure-B Final Report before the Magistrate and the Magistrate has taken cognizance against the petitioner herein and at that time the petitioner has rushed to this Court by stating that charge has been laid down by the police without obtaining prior sanction of the Central Government. Now the question to be considered is whether the prior sanction of the Central Government is required in this case or not. As per the Annexure-B Charge Sheet, it has stated that the accused is the owner of the Bridge way Furniture & Decor, a company engaged in contractual work at Abudabi, U.A.E. The accused and the petitioner has taken contract work on the strength of the agreement and he is also running Liwa Electrical and Sanitary Contracting at Abudabi, U.A.E. As per the charge sheet, the accused has completed the contract agreement. But the petitioner has not paid the amount as agreed by the agreement. The report of the SHO, Mattanchery is that since the place of occurrence and building are situated in UAE, he could not able to prepare the scene mahazar or to ascertain the functioning of the institutions and he has prepared the scene mahazar on the strength of some documents and filed Charge Sheet before this Court. So, as per the report as stated in Page No.18 of the Charge Sheet, it has borne out that the place of occurrence and the transaction was effected at UAE and not in India. Accordingly, the SHO has conducted the investigation in this case. But the investigation is not completed as he could not able to ascertain the facts as mentioned by the petitioner herein. So without conducting proper investigation in this case, he has filed Annexure-B Charge Sheet before the Court. The concerned Magistrate has not gone through the Charge Sheet and without going through the provisions as contemplated under Section 188 of the Cr.P.C. he has taken cognizance against the petitioner. 4. On going through the Annexure-B Charge Sheet and arguments advanced by the learned counsel for the petitioner, I find that there is some justification on his part in approaching this Court in order to quash the entire proceedings initiated by the police. It has held in Thariyath v. Fr. 4. On going through the Annexure-B Charge Sheet and arguments advanced by the learned counsel for the petitioner, I find that there is some justification on his part in approaching this Court in order to quash the entire proceedings initiated by the police. It has held in Thariyath v. Fr. George [1987 KHC 158] that “an enquiry must be a proceedings by a Magistrate or a Court while an investigation relates to the steps taken by a police officer other than a Magistrate. Inquiry is meant to include everything done in a case by a Magistrate. The term 'inquiry' has a very wide connotation under the Criminal Procedure Code and it includes all steps taken by the Magistrate other than the trial conducted under this Code. The main argument advanced by the petitioner's counsel was that even the first agreement was executed in India, the entire transaction was effected at Abudabi, UAE. Inorder to substantiate this fact, he has cited the ruling in 2009 (1) KHC 65 cited supra, wherein it has held that “in case of offences committed both within and outside the State, previous sanction of the Central Government is required to enquire into the matter”. As has held in the rule cited supra, I find that the entire transaction in this case was effected outside India and on receipt of the complaint, the learned magistrate has forwarded it for the investigation in this case. In fact there is no bar in conducting investigation in this case by the SHO of the Mattanchery, but prior to filing of the final Charge Sheet, he has to obtain sanction from the Central Government under Section 188 of the Cr.P.C. I had an occasion to come across this kind of situation earlier. In order to emphasis the fact that sanction prior to the filing of the Annexure-B Charge Sheet before the concerned court is required I had directed the prosecution to file a report. At last, the learned Public Prosecutor has admitted that no sanction has been obtained from the Central Government under Section 188 of Cr.P.C. for filing of Annexure-B Charge sheet. As per Section 188 of the Cr.P.C. it is well settled that in the absence of sanction from the Central Government, the inquiry and trial of the case is completely barred. 5. As per Section 188 of the Cr.P.C. it is well settled that in the absence of sanction from the Central Government, the inquiry and trial of the case is completely barred. 5. After hearing the counsel on both sides and on going through the documents filed, I find that except the investigation by the police, the enquiry and filing of the charge sheet is barred under Section 188 of the Cr.P.C. As has held earlier, the Annexure-B charge sheet was filed on the strength of a business transaction entered into between the petitioner and the de facto complainant. It is an admitted fact that both parties were conducting the business concern at Abudabi entirely on electrical goods. According to the petitioner, he has completed the entire contractual works, but the respondent has reluctant to pay the cash which incurred by the petitioner. The learned Public Prosecutor has no case that the transaction was effected in India. Even if the transaction was effected partially in India and partially outside India, sanction under Section 188 of the Cr.P.C. is required. Even in the charge sheet, the SHO was incapable of conducting a proper investigation in this case and Annexure-B Charge sheet was filed without preparing the scene mahazar. As has held in the ruling in 2009 (1) KHC 65 (cited supra) that in case of offences committed both within and outside the State, previous sanction of the Central Government is required to enquire into the matter. In this case, the respondent fails to establish that prior sanction from the Central Government has obtained before filing Annexure-B Charge sheet before the concerned court. 6. Therefore, I find that Annexure-B Charge Sheet filed before the Judicial First Class Magistrate Court-II, Kochi is without obtaining sanction from the Central Government and hence it is expressly barred under Section 188 of the Cr.P.C. In the light of findings and the rulings cited supra, I find that the prayer in the petition is only to quash all further proceedings in Annexure-B Final Report by invoking Section 482 of the Cr.P.C. and the entire proceedings, which is pending as C.C.No.456/2011 on the file of the Judicial First Class Magistrate Court-II, Kochi is hereby quashed by invoking Section 482 of the Cr.P.C.