Howe Engineering Projects (I) ... vs State Of Kerala
2021 Latest Caselaw 863 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                        Crl.MC.No.3800 OF 2020(D)

  AGAINST THE ORDER/JUDGMENT IN CC 331/2020 OF ADDITIONAL CHIEF
                 JUDICIAL MAGISTRATE ,TRIVANDRUM


PETITIONER/1ST ACCUSED:

             HOWE ENGINEERING PROJECTS (I) PVT. LTD.
             HAVING ITS REGISTERED OFFICE AT E 102, SANSKAR
             APARTMENT, OPPOSITE TO KARNAVATHI CLUB SG HIGHWAY,
             SATELITE, AHEDABAD, GUJARAT - 380 015, REPRESENTED BY
             ITS DEVENDRA SHIVLALBHAI THAKAR.

             BY ADVS.
             SRI.S.SREEKUMAR (SR.)
             SRI.ROSHEN.D.ALEXANDER
             SMT.TINA ALEX THOMAS
             SHRI.HARIMOHAN K

RESPONDENTS/ STATE & COMPLAINANT

      1      STATE OF KERALA
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNKAULAM - 682 031.

      2      MEGA TRADING CORPORATION
             HAVING ITS REGISTERED OFFICE AT DAS NAGAR,
             KUNNAPPUZHA, ARAMADA P.O., THIRUVANANTHAPURAM,
             REPRESENTED BY MR.GIREESH PILLAI, S/O.K.N.SIVASANKARA
             PILLAI, SIVA NIVAS, PAZHAVEEDU P.O., ALAPPUZHA.

             R1   BY   DIRECTOR GENERAL OF PROSECUTION
             R1   BY   ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR
             R2   BY   ADV. SRI.SIBI THOMAS JACOB
             R2   BY   ADV. SRI.V.P.RAMESAN
             R2   BY   ADV. SRI.P.VIJAYA BHANU (SR.)


     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.01.2021, ALONG WITH Crl.MC.3806/2020(E), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
     Crl.MC.3800/2020 &
    Crl.MC.3806/2020
                                       2


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

    MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                         Crl.MC.No.3806 OF 2020(E)

 AGAINST THE ORDER/JUDGMENT IN CC 331/2020 OF ADDITIONAL CHIEF
                JUDICIAL MAGISTRATE ,TRIVANDRUM

PETITIONER/ACCUSED 3,8,4 &6:

      1       M/S.ADANI VIZHINJAM PORT PVT. LTD.
              HAVING ITS REGISTERED OFFICE AT ADANI CORPORATE
              HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI CIRCLE, S.G.
              HIGHWAY, KHODIYA, AHAMEDABAD - 382421.AND HAVING
              ITS BRANCH OFFICE AT 2ND FLOOR, VIPANCHIKA TOWERS,
              THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MD
              AND CEO MR.RAJESH KUMAR JHA.

      2       KARAN GAUTAM ADANI
              ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI
              CORPORATE HOUSE, SHANTIGRAM, NEAR VAISHNO DEVI
              CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421
              BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS KARAN
              ADANI (SIC) ADANI VIZHINJAM PROJECTS PRIVATE
              LIMITED(SIC) ADANI HOUSE, VAISHNOVDEVI CIRCLE,
              SATHIGRAM, GUJARAT.

      3       GUDENA JAGANNADHA RAO,
              ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI
              CORPORATE HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI
              CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421,
              BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS G.J.
              RAO, CEO (SIC), ADANI VIZHINJAM PROJECTS PRIVATE
              LIMITED (SIC), ADANI HOUSE, VAISHNOVDEVI CIRCLE,
              SANTHIGRAM, AHAMEDABAD - 4824, GUJARAT.

      4       CHIRAYU JITENDRA PANDYA,
              ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI
              CORPORATE HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI
              CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421,
              BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS CHIRAYU
              PANDYA, TECHNICAL HEAD (SIC), ADANI VIZHINJAM
              PROJECT PRIVATE LIMITED (SIC), VAISHNOVDEVI CIRCLE,
              SANTHIGRAM, GUJARAT.
     Crl.MC.3800/2020 &
    Crl.MC.3806/2020
                                       3




              BY ADVS.
              SRI.ROSHEN.D.ALEXANDER
              SMT.TINA ALEX THOMAS
              SHRI.HARIMOHAN

RESPONDENTS/STATE & COMPLAINANT:

      1       STATE OF KERALA
              THROUGH THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM - 682031,

      2       MEGA TRADING CORPORATION
              HAVING ITS REGISTERED OFFICE AT DAS NAGAR,
              KUNNAPPUZHA, ARAMADA P.O.,THIRUVANANTHAPURAM.
              REPRESENTED BY MR. GIREESH PILLAI
              S/O. K.N. SIVASANKARA PILLAI, SIVA NIVAS,
              PAZHAVEEDU P.O., ALAPPUZHA, PIN-688 002.

              R1   BY   DIRECTOR GENERAL OF PROSECUTION
              R1   BY   ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR
              R2   BY   ADV. SRI.SIBI THOMAS JACOB
              R2   BY   ADV. SRI.V.P.REMESH
              R2   BY   ADV. SRI.P.VIJAYA BHANU (SR.)

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.01.2021, ALONG WITH Crl.MC.3800/2020(D), THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 Crl.MC.3800/2020 &
Crl.MC.3806/2020
                                  4



                                ORDER

The petitioner in two Crl.M.Cs. viz., accused

No.1 and accused No.3, 8, 4 and 6 came up to quash

Annexure A9 complaint and Annexure A10 order taking

cognizance for the offence under Section 420 r/w

Section 34 IPC. What is alleged is based on the

breach of contract and obligation arising out of

it. It was contended that the defacto complainant

agreed to supply rock boulders for the project of

Vizhinjam International Sea Port and a letter of

intent for supply of 84,00,000 MTS of rock boulders

within 24 months was placed with the defacto

complainant. It is alleged that defacto complainant

accordingly arranged rock boulders to a

considerable extent. They have also received part

payment of Rs.2,75,00,000/- and Rs.1,85,00,000/-,

totalling Rs.4,60,00,000/-. But subsequently, the

contract was assigned to somebody else causing big

loss to the complainant. The very nature of the

complaint would prima facie show what is involved

is a civil liability arising out of a concluded Crl.MC.3800/2020 & Crl.MC.3806/2020

contract and its breach. The facts narrated and

alleged would not constitute any delivery of

property or detention of property either

fraudulently or dishonestly under any deception or

cause any damage by that means to the property or

reputation of any person so as to attract the

ingredient which would constitute 'cheating' as

defined under Section 415 IPC. Hence it would be a

futile exercise if it is proceeded further. The

complaint and the order taking cognizance against

the petitioners are hereby quashed.

Crl.M.Cs. are allowed accordingly.

Sd/-

P.SOMARAJAN

JUDGE SPV Crl.MC.3800/2020 & Crl.MC.3806/2020

APPENDIX OF Crl.MC 3800/2020 PETITIONER'S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE LETTER OF INTENT BEARING NO.HEPIPL/ROCKS/2782 DTD. 23/05/2017 FOR THE SUPPLY OF 22,00,000 MT ROCKS ISSUED BY THE PETITIONER TO THE COMPLAINANT.

ANNEXURE A2 TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 28/06/2017 FOR AN AMOUNT OF RS.2,75,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.

ANNEXURE A2(A) TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 17/11/2017 FOR AN AMOUNT OF RS.1,00,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.

ANNEXURE A2(B) TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 02/06/2018 FOR AN AMOUNT OF RS.85,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.

ANNEXURE A3 TRUE COPY OF PLAINT IN O.S.NO.599/2020 ON THE FILES OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

ANNEXURE A4 TRUE COPY OF SUMMONS ISSUED IN O.S.NO.599/2020 ON THE FILES OF III ADDITIONAL MUNSIFF COURT TO THE 2ND PETITIONER.

ANNEXURE A5 TRUE COPY OF THE INJUNCTION PETITION NUMBERED AS I.A.NO.1/2020.

ANNEXURE A6 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN I.A.NO.1/2020.

ANNEXURE A7 TRUE COPY OF NEWS ITEM APPEARED ON 5TH AUGUST 2020 IN TIMES NEWS NETWORK.

ANNEXURE A8 TRUE COPY OF NOTE CIRCULATED AMONG MEDIA PERSONS.

ANNEXURE A9 TRUE COPY OF THE COMPLAINT DTD.

24/07/2019 WHICH WAS FILED AS CRL.M.P.NO.2101/2019 AND NUMBERED AS Crl.MC.3800/2020 & Crl.MC.3806/2020

C.C.NO.331/2020 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

ANNEXURE A10 TRUE COPY OF ORDER ISSUING PROCESS DTD.

18/03/2020 IN CRL.M.P.NO.4101/2019.

RESPONDENS' EXHIBITS:

ANNEXURE-R2A TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM I CC-331/2020

ANNEXURE-R2B TRUE COPY OF THE STATEMENT OF THE COMPLAINANT RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM

ANNEXURE-R2C TRUE COPY OF THE STATEMENT OF THE WITNESS RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

ANNEXURE-R2D TRUE COPY OF THE LOI SIGNED BY THE 2ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017.

ANNEXURE-R2E TRUE COPY OF THE 2ND LOI SIGNED BY THE 2ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017

ANNEXURE-R2F TRUE COPY OF THE LOI DATED 23/05/2017 FOR COLLECTION OF ROCK BOULDERS FROM THENGAPATTANAM.

ANNEXURE-R2G TRUE COPY OF THE CERTIFICATE OF AUTHORIZATION DATED 23/05/2017 ISSUED TO THE MANAGING PARTNER OF THE 2ND RESPONDENT/COMPLAINANT AUTHORIZING HIM TO LAISON THE ENTIRE PROJECT ISSUED BY THE FIRST PETITIONER/ACCUSED. Crl.MC.3800/2020 & Crl.MC.3806/2020

ANNEXURE-R2H TRUE COPIES OF THE INVOICES DATED 28/06/2017, 17/11/2017 AND 02/06/2018.

ANNEXURE-R2I TRUE COPY OF THE LOI DATED 12/12/2019 ENTERED INTO BETWEEN THE PAMBADY STONES AND COMMODITIES (P) LTD AND HOWE ENGINEERING PROJECTS INDIA PRIVATE LTD. Crl.MC.3800/2020 & Crl.MC.3806/2020

APPENDIX OF Crl.MC 3806/2020 PETITIONER'S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF PLAINT IN OS NO. 599/2020 ON THE FILES OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

ANNEXURE A2 TRUE COPY OF SUMMONS ISSUED IN OS NO.599/2020 ON THE FILES OF III ADDITIONAL MUNSIFF'S COURT TO THE 2ND PETITIONER.

ANNEXURE A3 TRUE COPY OF THE INJUNCTION PETITION NUMBERED AS IA NO.1/2020.

ANNEXURE A4 TRUE COPY OF COUNTER AFFIDAVIT FILED BY HOWE, THE 1ST ACCUSED IN IA NO.1/2020.

ANNEXURE A5 TRUE COPY OF NEWS ITEM APPEARED ON 5TH AUGUST 2020 IN TIMES NEWS NETWORK.

ANNEXURE A6 TRUE COPY OF NOTE CIRCULATED AMONG MEDIA PERSONS.

ANNEXURE A7 CERTIFIED COPY OF THE COMPLAINT DATED 24.07.2019 WHICH WAS FILED AS CRL.M.P. NO.2101/2019 AND NUMBERED AS CC NO.331/2020 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

ANNEXURE A8 TRUE COPY OF ORDER ISSUING PROCESS DATED 18.03.2020 IN CRL.M.P. NO.4101/2019.

RESPONDENS' EXHIBITS:

ANNEXURE-R2A CERTIFIED COPY OF THE PROCEEDINGS OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM I CC-331/2020

ANNEXURE-R2B CERTIFIED COPY OF THE STATEMENT OF THE COMPLAINANT RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM

ANNEXURE-R2C CERTIFIED COPY OF THE STATEMENT OF THE WITNESS RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, Crl.MC.3800/2020 & Crl.MC.3806/2020

THIRUVANANTHAPURAM.

ANNEXURE-R2D TRUE COY OF THE LOI SIGNED BY THE 2ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017.

ANNEXURE-R2E TRUE COPY OF THE 2ND LOI SIGNED BY THE 2ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017

ANNEXURE-R2F TRUE COPY OF THE LOI DATED 23/05/2017 FOR COLLECTION OF ROCK BOULDERS FROM THENGAPATTANAM.

ANNEXURE-R2G TRUE COPY OF THE CERTIFICATE OF AUTHORIZATION DATED 23/05/2017 ISSUED TO THE MANAGING PARTNER OF THE 2ND RESPONDENT/COMPLAINANT AUTHORIZING HIM TO LAISON THE ENTIRE PROJECT ISSUED BY THE FIRST PETITIONER/ACCUSED.

ANNEXURE-R2H TRUE COPIES OF THE INVOICES DATED 28/06/2017, 17/11/2017 AND 02/06/2018.

ANNEXURE-R2I TRUE COPY OF THE LOI DATED 12/12/2019 ENTERED INTO BETWEEN THE PAMBADY STONES AND COMMODITIES (P) LTD AND HOWE ENGINEERING PROJECTS INDIA PRIVATE LTD.

//TRUE COPY//

PA TO JUDGE