Kerala High Court
Abdul Razak M.K vs State Of Kerala on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
WP(C) NO. 11166 OF 2021
PETITIONER/:
ABDUL RAZAK M.K
AGED 28 YEARS,
S/O.KUNJU MOHAMMED, MANGALASSERY HOUSE, CHERANELLOOR,
ERNAKULAM, PIN 682 034.
BY ADVS.
K.R.VINOD
SMT.M.S.LETHA
RESPONDENT/S:
1 STATE OF KERALA
REP. BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR GENERAL OF POLICE
POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM
695 010.
3 THE COMMISSIONER OF POLICE
KOCHI CITY, PARK AVENUE ROAD, KOCHI 682 011.
4 THE ASSISTANT COMMISSIONER OF POLICE
ERNAKULAM, OFFICE OF THE ASST. COMMISSIONER OF POLICE,
ERNAKULAM, PIN 682 018.
5 THE STATION HOUSE OFFICER
CHERANELLOOR POLICE STATION, CHERANELLOOR, PIN 682 034.
6 MUHAMMED
AGED 32 YEARS
S/O.HUSSAIN, KATTAYANDI HOUSE, CHERANELLOOR, ERNAKULAM,
PIN 682 034.
WP(C).11166/21 2
OTHER PRESENT:
ADGP - SRI. GRACIOUS KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).11166/21 3
JUDGMENT
This is a writ petition filed under Article 226 of the Constitution seeking
to issue a writ of mandamus directing respondents 1 to 3 to hand over the
investigation of Ext.P3 complaint of the petitioner to a police officer not
below the rank of Deputy Superintendent of Police with direction to register a
crime against the 6th respondent forthwith.
2. According to the petitioner, he is a driver by profession and also
the registered owner of a container lorry of Mahindra and Mahindra Ltd. with
registration No. KL 07 CL 6902. He purchased the vehicle availing financial
assistance from Indus Ind Bank Ltd., Ernakulam and also obtained goods
carriage permit for the vehicle. According to him, during pandemic period he
was unable to ply the vehicle and hence entrusted the same with the 6 th
respondent on the unconditional undertaking that he would pay the EMI to the
financier without default and pay tax and other liabilities of the vehicle. But
later he understood that the 6th respondent did not pay the amount to the
financier and also failed to pay tax and other liabilities and thus committed
criminal breach of trust and also cheated him. On realising that the 6 th
respondent has committed offence under Sections 406, 408 and 420 of IPC he
moved the 3rd respondent with Ext.P3 petition. The grievance of the petitioner
is that the petition has not been acted upon. According to him, even though
the 3rd respondent had endorsed the petition to the 5th respondent, no action
has been taken. On the basis of Ext.P3 a crime ought to have been registered
and investigated and the vehicle should have been retrieved by the police.
Thus seeking the above said relief he has moved this Court.
3. When the matter came up for admission, the Investigating Officer
was directed to file a report stating the action taken on Ext.P3 petition. Such a
report has been filed stating that the dispute is civil in nature so that a crime
was not registered by the Station House Officer. It is also reported that after
calling both sides, the petitioner was advised to seek remedy through Court.
4. I heard the learned counsel for the petitioner as well the learned
Additional Director General of Prosecution.
5. According to the learned counsel for the petitioner, the act of the
6th respondent clearly falls within the scope of cheating and criminal breach of
trust. Even though commission of a cognisable offence was revealed by the
police, no action has been taken, which is illegal so that he pressed for
passing a writ of mandamus against respondents 1 to 5.
6. The learned Additional Director General of Prosecution strongly
opposed the application. According to him, this is not a fit case for granting
the discretionary relief under Article 226 of the Constitution. The petitioner
himself is guilty of committing breach of the contract; he had transferred the
vehicle without the knowledge and consent of the financier and therefore he
pressed for dismissing the application. According to him, it is open to the
petitioner to move the court under Section 156 of the Cr.P.C.
7. After having heard counsel on both sides, I am not inclined to
grant any relief to the petitioner invoking the extraordinary jurisdiction of this
Court under Article 226 of the Constitution.
8. Firstly, Ext.P3, on the face of it, is a petition filed before the 3 rd
respondent seeking to summon the 6th respondent and direct him to absolve all
liabilities due to the financier. Even though it is alleged that the 6 th respondent
has committed criminal breach of trust, cheating etc., I do not think that the
petitioner is justified in rushing to this Court without following the procedure
provided under the provisions of the Criminal Procedure Code. The report
filed by the Inspector, Cheranalloor police station indicates that the petitioner
had given a sale letter in favour of the 6 th respondent; there are also reasons to
think that there were other business deals also, between them. Of course, the
present stand of the official respondents that it is a civil dispute may not be
acceptable to him. Still, it is open to the petitioner to approach the
jurisdictional court with a complaint under Section 190 of the Cr.P.C. either to
take cognisance of the offence itself or to forward it to the police under
Section 156(3) Cr.P.C. It seems that it is the proper course open to the
petitioner to set the law in motion. Without resorting to such an ordinary
remedy he has rushed to this Court invoking extraordinary jurisdiction of this
Court, which cannot be appreciated in right earnest.
9. Secondly, as rightly pointed out by the learned Additional
Director General of Prosecution, it seems that the petitioner was not justified
in transferring possession of the vehicle pending financial arrangement,
without the knowledge of the financier. The learned counsel submitted that it
is not an illegality but only an arrangement made between himself and the 6 th
respondent following which the 6th respondent is not expected to act in breach
of trust. All these matters can be agitated in appropriate forum. As noted
earlier, the remedy available to the petitioner is to approach the criminal court
by filing a complaint proper and to get the prosecuting agency alerted.
I am not inclined to invoke the extra ordinary jurisdiction of this Court
under Article 226 of the Constitution in such a situation. The writ petition is
devoid of merit and is liable to be dismissed. Dismissed. No cost.
Sd/-
K. HARIPAL
JUDGE
okb/24.8
//True copy// P.S. to Judge
APPENDIX OF WP(C) 11166/2021
PETITIONER EXHIBITS
EXHIBIT P1 THE COPY OF THE REGISTRATION CERTIFICATE OF
THE VEHICLE BEARING REGISTRATION NO.KL07 CL
6902 IN THE NAME OF THE PETITIONER.
EXHIBIT P2 THE COPY OF THE GOODS CARRIAGE PERMIT IN THE
NAME OF THE PETITIONER WITH RESPECT TO KL07 CL
6902.
EXHIBIT P3 THE COPY OF THE COMPLAINT DATED 23.2.2021
FILED THE PETITIONER BEFORE THE 4TH
RESPONDENT.
EXHIBIT P4 THE COPY OF THE ACKNOWLEDGEMENT OF THE
COMPLAINT LODGED BY THE PETITIONER BEFORE THE
4TH RESPONDENT.
