Kerala High Court
M.Amanulla Khan vs Sajeena Vahab on 21 May, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.MC NO. 5290 OF 2019
(FIR NO.31/2008 OF NEDUMBASSERY POLICE STATION, ERNAKULAM)
PETITIONER/ACCUSED:
M.AMANULLA KHAN
S/O.MOHAMMAD MAKKAR SAHIB,339,
KANJIRAMVILA,KUNDAYAM.P.O,PATHANAPURAM,
KOLLAM DISTRICT-689695.
BY ADVS.C.UNNIKRISHNAN (KOLLAM)
VIVEK NAIR P.
UTHARA A.S
VIJAYKRISHNAN S. MENON
RESPONDENTS/STATE & COMPLAINANT:
1 SAJEENA VAHAB, W/O.LATE C.M.ABDUL VAHAB,
LAILA MANZIL, NEDUMBAIKULAM,KUNDARA.P.O,
KOLLAM, PIN-691501.
2 SUB INSPECTOR OF POLICE,
AIRPORT POLICE STATION, NEDUMBASSERY,ALUVA,
ERNAKULAM DISTRICT,683585.
3 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM-682031.
BY G SUDHEER,PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.5290 of 2019
2
ORDER
The petitioner originally filed the Crl.M.C seeking to quash
FIR No.31/2008 of Airport Police Station, Nedumbassery and all further
proceedings pursuant to it. During the pendency of the proceedings,
the Police submitted final report before the jurisdictional Court. The
petitioner thereafter incorporated the relief to quash the final report by
way of amendment in the Crl.M.C.
2. The prosecution was initiated based on a complaint filed
by respondent No.1 before the Judicial First Class Magistrate Court-I,
Aluva. The learned Magistrate directed registration of the FIR under
Section 156(3) of Cr.P.C.
3. The allegations in the complaint filed by respondent No.1
are as follows:-
The complainant/respondent No.1 is the investor, authorized
Manager and Signatory of a company by the name and style "Labib
Trading and Contracting L.L.C" having its office in the Sultanate of
Oman. Sri.Muhammad Abdul Vahab, her husband, started the company
in 2002. Her husband died on 3.2.2005 due to cardiac arrest. After the
death of her husband, the complainant became the shareholder of the
company and took charge of the affairs of it. The petitioner/accused is
the brother-in-law of her husband. He is an Electrical Engineer by
profession. He was working in Dubai at the time of the death of her
husband. As nobody was there to look after and manage the affairs of
the company, respondent No.1 appointed the petitioner/accused as
Manager of the company on a monthly remuneration of 1000 Riyals.
She executed a power of attorney No.190/2005 dated 3.5.2005 in
favour of the accused authorising him to represent her in connection
with all affairs of the company. The accused was managing the day-
today affairs of the company, including the bank transactions, from
3.5.2005. He managed the affairs of the Company till 18.8.2008. The
accused was a full time employee of the Company. He unauthorisedly
withdrew a total sum of Rs.8,78,00,000/- during the period from
3.5.2005 to 18.8.2008 from the account of the company by misusing
the power given by the petitioner. The amount so misappropriated has
been transferred to his personal account and the account of his wife in
various banks in Kollam District. The accused intentionally
misappropriated the assets of the company and thereby defrauded the
complainant and obtained wrongful gain causing wrongful loss to the
complainant. At the commencement of the employment in the
company the accused had the intention to misappropriate funds owned
by the complainant. When he realized that the complainant's son came
to know of the misappropriation committed by him he terminated his
employment and left Oman. The complainant came to know that the
accused purchased properties in various parts of Kerala using the
money misappropriated from the account of the company and he is
keeping the balance sum in his accounts and the accounts of his wife in
different banks. The accused forged the signature of the complainant
for submitting certain applications before the departments concerned
for the purpose of obtaining illegal gain. He is alleged to have
committed the offences punishable under Sections 406, 408, 420 and
467 of the Indian Penal Code.
4. The case of the petitioner/accused is as follows:-
M/s.Labib Trading and Contracting L.L.C , Sultanate of Oman is
owned and managed by an Omani National namely Mr.Masoud Bin
Muhammed Bin Nasser Al Mahrani. The husband of respondent
No.1/complainant late C.M.Abdul Wahab was an employee of the
company in April, 2002. Abdul Wahab acquired shares in the company.
Sri.Abdul Wahab died on 3.2.2005. The petitioner had been working as
an Electrical Engineer and Engineering Consultant in Dubai. After the
death of Sri.Abdul Wahab, respondent No.1 requested the service of the
petitioner to manage the affairs of the company. As per Annexure III
order of appointment, he joined duty in July, 2005. As per the relevant
clause in Annexure III order of appointment, the petitioner was given
full freedom to take, withdraw on his own will, any additional assets or
an equivalent amount created during his services as General Manager.
In June 2008, the son of respondent No.1 joined the company as an
employee and thereupon, the petitioner expressed his desire to wind up
his services and business in the company. The son of respondent No.1
insisted on handing over the services of the management of the
company and settling the accounts as on date. As decided by
respondent No.1 and her son, on 10.8.2008 the petitioner handed over
his services as per Annexure IV memorandum of understanding. At the
time of executing Annexure IV memorandum of understanding neither
respondent No.1 nor her son raised any complaint or allegation against
the petitioner. With effect from 15.8.2008, the petitioner was relieved
of the responsibilities in the company and he came back to Kerala. He
has not misappropriated any assets as alleged by respondent No.1.
5. The Police conducted investigation in the matter. The
Investigating Agency examined 23 witnesses, seized various documents
and submitted final report concluding that the petitioner committed
offences under Sections 406, 408, 420 and 467 of IPC.
6. I have heard Sri.C.Unnikrishnan, the learned counsel
appearing for the petitioner and Sri.G.Sudheer, the learned Public
Prosecutor.
7. The learned counsel for the petitioner submitted that the
complaint as well as the final report do not disclose any offences as
alleged. The prosecution failed to establish that the petitioner at the
very inception of his service had any intention to cheat the company
and respondent No.1. It is submitted that the allegations at the most
reveal only a civil wrong. The learned counsel for the petitioner further
contended that Annexure III order of appointment and Annexure IV
memorandum of understanding would rule out the entire allegations
raised by the prosecution. The learned counsel further canvassed that
as the offences were committed outside India the Investigating Agency
was not competent to enquire into the allegations except with the
previous sanction of the Central Government as provided in Section 188
of the Code of Criminal Procedure.
8. The learned Public Prosecutor submitted that the
complaint and the final report reveal the offences alleged. The learned
Public Prosecutor submitted that there are sufficient materials to hold
that the petitioner had the intention to cheat the company and
respondent No.1 at the very inception of his services in the company.
The learned public prosecutor also submitted that the genuineness of
Annexures III and IV documents relied on by the petitioner are doubtful
and it is a matter of evidence. The learned public prosecutor further
submitted that the original power of attorney executed by the defacto
complainant has been suppressed by the petitioner/accused.
9. A copy of the final report has been placed before this
Court. The Investigating Agency has concluded that during the period
from 3.5.2005 to 18.8.2008, the petitioner misappropriated a sum of
Rs.8,78,000/- from the company unauthorisedly and deposited in
various banks in Kollam District. The Investigating Agency further
concluded that the petitioner had an intention to commit cheating and
breach of trust at the very commencement of his employment in the
company.
10. The Investigating Officer submitted an affidavit
narrating the overt acts alleged against the petitioner. The conclusions
of the Investigating Agency are as follows:-
a) Respondent No.1 appointed the petitioner as the Manager of the
company as per Power of Attorney No.190/2005 dated 3.5.2005 for
three years.
b) During the period from 3.5.2005 to 18.8.2008 the petitioner
misappropriated a sum of Rs.8,78,00,000/-, the details of which are the
following:-
The petitioner deposited Rs.3,01,33,310/- in Canara Bank
Pidavoor Branch in his name and Rs.1,11,74,509/- in the name of Fousi
Begum, wife of the accused. He deposited a sum of Rs.2,58,98,892/- in
his name in the South Indian Bank, Pathanapuram Branch. He also
deposited another sum of Rs.1,88,39,277/- in his name in the Federal
Bank, Pathanapuram Branch and Rs.51,15,015/- in Citi Bank,
Ernakulam Branch. He also acquired 9 acres and 28 cents of land in
the joint names of himself and his wife in Pathanapuram Taluk and
10.67 cents of land at Kilikollur in his name.
(c) The monthly salary of the petitioner was 1000 Riyals which was
subsequently increased to 1400 Riyals, which is evident from the salary
vouchers seized. The petitioner misused the Power of Attorney given to
him by respondent No.1. The petitioner did not produce the original
Power of Attorney dated 2.5.2005 to the Investigating Agency. The
Power of Attorney No.190/2005 dated 3.5.2005 relied on by the
petitioner is a general power of attorney. The defacto complainant
gave evidence that she did not sign any document to be produced
before the Ministry of Oman. The complicity and genuineness of the
Power of Attorney dated 2.5.2005 has to be considered only at the
stage of evidence. Sri.Sebastian K.Jose, the official lawyer of the
Sultanate of Oman stated that he had registered the power of attorney
at the instance of the defacto complainant in favour of the petitioner
and registered as No.190/2005 on 3.5.2005 and a copy of the same is
available in the Ministry of Oman. The lawyer stated that the defacto
complainant never gave any direction to hand over the share of the
company to the accused.
11. The petitioner relies on Annexure III order of
appointment and Annexure IV memorandum of understanding in
support of his contentions.
12. The learned Public Prosecutor submitted that the
genuineness of Annexures III and IV is doubtful. The veracity of the
same can be assessed only at the stage of the trial.
13. The learned counsel for the petitioner relied on
International Advanced Research Centre for Powder Metallurgy
and New Materials (ARCI) and Others v. Nimra Cerglass
Technics (P) Ltd. And Another (2015 KHC 4633) and Hira Lal
Hari Lal Bhagwati v. CBI, New Delhi (2003 KHC 1022) and a series
of other precedents to contend that to attract the offence of cheating as
provided under Section 420 IPC, the prosecution has to establish that
the petitioner at the very inception had a dishonest intention to commit
the alleged acts. The learned counsel submitted that if it is not
established that the petitioner had dishonest intention at the
commencement of the transaction, no criminal prosecution will lie. It is
submitted that a mere breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent and dishonest intention is
shown at the time of the transaction.
14. The prosecution specifically alleges that the petitioner
had fraudulent or dishonest intention at the beginning itself. The
prosecution materials disclose the offence of cheating and other
offences.
15. The learned counsel for the petitioner, relying on Rajiv
Thapar and Others v. Madan Lal Kapoor [(2013) 3 SCC 330] and
Prashant Bharti v. State (NCT of Delhi) [(2013) 9 SCC 293]
contended that the materials relied on by the petitioner can be
considered to reject the factual basis of the accusations. In Prashant
Bharti following Rajiv Thapar the Supreme Court held thus:-
"20. In Rajiv Thapar & Ors. v. Madan Lal Kapoor (2013 (2)
KLT Suppl.5 (SC) = (2013) 3 SCC 330)), the Apex Court
delineated the following steps to determine the veracity of a
prayer for quashment raised by an accused by invoking the
power vested in the High Court under Section 482 of Cr.P.C.:-
"Step one: Whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e., the
materials is of sterling and impeccable quality?
Step two: whether the material relied upon by the accused
would rule out the assertions contained in the charges levelled
against the accused i.e., the material is sufficient to reject and
overrule the factual assertions contained in the complaint i.e.,
the material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as
false?
Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
Step four: whether proceeding with the trial would result in
an abuse of process of the court, and would not serve the ends
of justice?
If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power vested in
it under Section 482 Cr.P.C. Such exercise of power, besides
doing justice to the accused, would save precious court time,
which would otherwise be wasted in holding such a trial (as well
as proceedings arising therefrom) especially when it is clear
that the same would not conclude in the conviction of the
accused."
16. I have gone through the materials placed before me. It
is pertinent to note that the prosecution challenges the genuineness of
the documents relied on by the petitioner. Those materials are not of
sterling and impeccable quality. I am of the view that the documents
relied on by the petitioner do not persuade to dismiss and condemn the
factual basis of the accusations.
17. The next contention of the learned counsel for the
petitioner is that as the offences were committed outside India the
enquiry, investigation and prosecution are barred in view of the proviso
to Section 188 Cr.P.C.
18. As per Section 188 Cr.P.C., when an offence is
committed outside India- (a) by a citizen of India, whether on the high
seas or elsewhere; or (b) by a person, not being the citizen, on any
ship or aircraft registered in India, the offender may be dealt with in
respect of such offence as if it had been committed at any place within
India at which he may be found. The proviso to Section 188 Cr.P.C.
says that no such offence shall be inquired into or tried in India except
with the previous sanction of the Central Government.
19. The section gets attracted when the entirety of the
offence is committed outside India and the grant of sanction would
enable such offence to be enquired into or tried in India. A Three Judge
Bench of the Supreme Court in Sartaj Khan v. State of Uttarakhand
(2022 LiveLaw (SC) 321) held that if the offence was not committed in
its entirety, outside India, the matter would not come within the scope
of Section 188 Cr.P.C. and there is no necessity of any sanction as
mandated by the proviso to Section 188. In view of the settled law, the
contention of the petitioner relying on Section 188 Cr.P.C. fails.
20. It is settled by a long course of decisions of the Apex
Court that for the purpose of exercising its power under Section
482 Cr.P.C. to quash criminal proceedings, the High Court would have
to proceed entirely on the basis of the allegations made in the
complaint or the documents accompanying the same per se. It has
been further held that the High Court has no jurisdiction to examine the
correctness or otherwise of the allegations (Vide: State of West
Bengal v. Swapan Kumar Guha (1982 KLT OnLine 1031 (SC) =
(1982) 1 SCC 561), Pratibha Rani v. Suraj Kumar (1985 KLT OnLine
1239 (SC) = (1985) 2 SCC 370)).
21. In State of Kerala v. O.C.Kuttan (1999 (1) KLT 747
(SC) = (1999) 2 SCC 651), the Apex Court held that while exercising
the power, it is not possible for the Court to sift the materials or to
weigh the materials and then come to the conclusion one way or the
other. In State of U.P v. O.P.Sharma (1996 (1) KLT OnLine 997 (SC)
= (1996) 7 SCC 705) a Three Judge Bench of the Apex Court observed
that the High Court should be loath to interfere at the threshold
to thwart the prosecution exercising its inherent power under Section
482 Cr.P.C. or under Articles 226 and 227 of the Constitution of India,
as the case may be, and allow the law to take its own course. This view
was reiterated by another Three Judge Bench of the Apex Court in
Rashmi Kumar v. Mahesh Kumar Bhada (1996 (2) KLT OnLine 1211
(SC) = (1997) 2 SCC 397), wherein the Apex Court held that such
power should be sparingly and cautiously exercised only when the Court
is of the opinion that otherwise there will be gross miscarriage of
justice. It is trite that the power of quashing criminal proceedings
should be exercised with circumspection and that too, in the rarest of
rare cases and it was not justified for this Court in embarking upon an
enquiry as to the reliability or genuineness or otherwise of the
allegations made in the final report or the complaint. A finding on the
veracity of a material relied on by the prosecution in a case where the
allegations levelled by the prosecution disclose a cognizable offence, is
not a consideration for the High Court while exercising its power under
Section 482 Cr.P.C. This view is fortified by the decision of the Apex
Court in Mahendra K.C. v. State of Karnataka and Ors. (2021 (6)
KLT OnLine 1128 (SC) = AIR 2021 SC 5711).
22. While dealing with the power under Section 482 Cr.P.C.
to quash the criminal proceedings the Apex Court in M/s.Neeharika
Infrastructure Pvt.Ltd. v. State of Maharashtra & Ors. (2021 (3)
KLT SN 4 (C.No.3) SC = 2021 (2) KLT OnLine 1039 (SC) = AIR 2021
SC 1918) concluded thus in paragraph 23 of the judgment:
"23. In view of the above and for the reasons stated above,
our final conclusions on the principal/core issue, whether the
High Court would be justified in passing an interim order of
stay of investigation and/or "no coercive steps to be adopted",
during the pendency of the quashing petition Under Section
482 Code of Criminal Procedure and/or Under Article 226 of
the Constitution of India and in what circumstances and
whether the High Court would be justified in passing the order
of not to arrest the Accused or "no coercive steps to be
adopted" during the investigation or till the final
report/chargesheet is filed Under Section 173 Code of Criminal
Procedure, while dismissing/disposing of/not entertaining/not
quashing the criminal proceedings/complaint/FIR in exercise of
powers Under Section 482 Code of Criminal Procedure and/or
Under Article 226 of the Constitution of India, our final
conclusions are as under:
(i) xxx xxx xxx xxx xxx xxx
(xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the offence
reported. Therefore, when the investigation by the police is in
progress, the court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete
the investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does
not deserve to be investigated or that it amounts to abuse of
process of law. After investigation, if the investigating officer
finds that there is no substance in the application made by the
complainant, the investigating officer may file an appropriate
report/summary before the learned Magistrate which may be
considered by the learned Magistrate in accordance with the
known procedure;
(xiii) xxx xxx xxx
(xiv) xxx xxx xxx
(xv) When a prayer for quashing the FIR is made by the
alleged Accused and the court when it exercises the power
Under Section 482 Code of Criminal Procedure, only has to
consider whether the allegations in the FIR disclose
commission of a cognizable offence or not. The court is not
required to consider on merits whether or not the merits of
the allegations make out a cognizable offence and the court
has to permit the investigating agency/police to investigate
the allegations in the FIR;"
23. In the present case, the petitioner failed to convince this
Court that the allegations levelled against him in the prosecution
records made available do not disclose the ingredients of the offences
alleged. The correctness or otherwise of the allegations levelled in
Annexure I FIR and final report is a matter to be tested during the
course of the trial. It is made clear that this Court has not made any
observation on the merits or otherwise of the allegations levelled by the
prosecution.
The Crl.M.C. lacks merits. It stands dismissed.
Sd/-
K.BABU
Judge
TKS
PETITIONER's ANNEXURES
ANNEXURE I CERTIFIED COPY OF THE COMPLAINT DATED
17.10.2008 FILED BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE NO.1,ALUVA.
ANNEXURE II CERTIFIED COPY OF THE F.I.R.IN CRIME
NO.31/2008 OF NEDUMBASSERY POLICE STATION.
ANNEXURE III TRUE COPY 0F THE APPOINTMENT ORDER OF THE
PETITIONER.
ANNEXURE IV TRUE COPY OF THE HANDING OVER CERTIFICATE
SIGNED ON 10.4.2008
ANNEXURE V TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING AND THE AFFIDAVIT FILED BY
THE CHAIRMAN.
ANNEXURE VI TRUE COPY OF THE JUDGMENT IN
CRL.M.C.4666/2008 OF THIS HON'BLE COURT
DATED 1.8.2013.
ANNEXURE VII TRUE COPY OF THE ORDER IN C.M.P.1673/2013
BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-I,ALUVA.
ANNEXURE VIII TRUE COPIES OF THE CHEQUES IN NRE SB
A/C.N0.2498 IN THE FEDERAL BANK
LTD.,PATHANAPURAM, A/C.NO.6777 IN CANARA
BANK,PIDAVOOR,KERALA AND A/C.NO.0741093464
IN CITY BANK,ERNAKULAM,KOCHI.
ANNEXURE IX TRUE COPY OF THE INTERIM ORDER IN
CRL.M.C.NO.4666/08 DATED 1.4.2009.
ANNEXURE X TRUE COPY OF THE STATMENT PETITION DATED
11.10.2014 SUBMITTED BEFORE THE
C.I.,NEDUMBASSERY POLICE STATION.
ANNEXURE XI TRUE COPY OF THE MALAYALA MANORAMA DAILY
DATED 6.7.2009.
ANNEXURE XII TRUE COPY OF THE CERTIFICATE OF EMPLOYMENT
DATED 29.01.14 WHICH HAS BEEN UPDATED AND
RENEWED UP TO JANUARY 14TH 2016.
Annexure XIII A TRUE COPY OF THE ORDER DATED 17.08.2013
IN CRL.M.P. NO. 1673/2013 IN CRIME
NO.31/2008 ON THE FILE OF JFMC-I, ALUVA.
Annexure XIV A TRUE COPY OF THE INTERIM REPORT FILED
BY THE INVESTIGATING OFFICER IN OCTOBER
2013 BEFORE THE JFCM-I, ALUVA IN CRL.M.P.
NO. 1673/2013.
Annexure XV A TRUE COPY OF THE REPORT DATED
18.09.2015 FILED BY THE SHO IN CRL.M.P.
NO. 1673/2013 IN CRIME NO.31/2008.
Annexure XVI A TRUE COPY OF THE FINAL REPORT FILED BY
THE POLICE IN CRIME 31/2008.
TKS
