Jemseer Muhammed Rasheed vs. State Of Kerala
Original PDF →This is an application filed under Section 438 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., by one Jemseer Muhammed Rasheed. At the time of filing the petition he had no idea about the case or the crime number. Apprehending arrest in an unknown crime he moved this Court with the above petition. According to him, he owed certain amount to one Santhosh V.K. of Mobile Lab, Pattom. Due to pandemic situation the payment was delayed and that was how the informant had approached the Assistant Commissioner of Police, Cantonment, Thiruvananthapuram alleging that the petitioner had cheated him. Thus police started pestering him, that was how he moved this Court.
The petitioner further submits that he is a businessman running a shop by name Nuts Factory at Azhikode, Karakulam in Thiruvananthapuram. As part of business, about three months back, he had taken 30 mobile tabs from Santhosh; out of the 30 mobile tabs 11 were returned to Santhosh as the same could not be sold and the price of 19 tabs is due. Meanwhile he paid an amount of Rs.80,000/- by account payee transfer. He is prepared to pay the price of 19 tabs and now on the basis of a fabricated story, police officials are trying to arrest him that made him to
BA.3267/21 3 approach this Court.
At the time of admission, it was revealed that he is the accused in crime 495/2021 of Museum police station which was registered alleging offence under Section 420 of IPC. On that count that crime number was incorporated and later the said Santhosh was impleaded as additional 2nd respondent.
I heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and also the learned Senior Public Prosecutor.
The learned counsel for the petitioner submitted that at the initial stage she had not gathered correct instructions and now with the aid of Annexure-A invoice dated 08.02.2021, she submitted that the petitioner had purchased 30 mobile tabs from the 2nd respondent after making a payment of Rs.9,60,000/- which is evident from the document. According to the learned counsel, she had checked up the GST site and such a sale is reflected in the site also. That means, GST was also paid for the same; 30 mobile phones were purchased by making cash payment. At the same time, the counsel submitted that the petitioner admits that he had taken a loan from the 2nd respondent which was given by account transfer. He is
BA.3267/21 4 prepared to repay the amount; he has already repaid Rs.80,000/- According to the learned counsel, prior to the transaction under question, there were innumerable periodical transactions between the petitioner and 2nd respondent and there was close acquaintance between them. In fact he had borrowed an amount of Rs.4 lakhs on the strength of that association; except the sum of Rs.4 lakhs taken as loan from the 2nd respondent no amount is liable to be paid, out of which Rs.80,000/- has already been paid and the balance will be paid in due course, that the petitioner is prepared to co-operate with the investigation and there is nothing for his custodial interrogation.
The learned counsel for the 2nd respondent has strongly opposed the submission. According to him, Annexure-A document is only an invoice created at the time of handing over 30 mobile tabs to the petitioner. It was a credit transaction; no amount was paid in cash and that was why no receipt proving the payment of money has been produced. According to the learned counsel, the crime was registered since the petitioner had cheated the 2nd respondent. He had made a representation that the petitioner has received quotation from the Kerala State Industrial Development Corporation (KSIDC) and on that representation, one
BA.3267/21 5 mobile phone worth Rs.1,06,000/- and two tablets worth Rs.32,000/- each were taken from the shop of the 2nd respondent on the pretext that the mobile phone and two tablets had to be given as complements to the officials of the KSIDC. That along with mobile instruments worth Rs.9,60,000/- were taken from him. Even after promised period, its price was not paid and that was how a First Information Statement was given to the Museum police and the crime was registered.
These arguments of the learned counsel for the 2nd responder have been supported by the learned Senior Public Prosecutor. According to her, the petitioner was a regular visitor in the shop of the defacto complainant. Regarding Annexure-A she said that once bill is prepared, that will be reflected in the GST site, but that does not indicate there was cash payment as claimed by the petitioner. The Public Prosecutor also submitted that there is allegation that the petitioner had made false epresentation before the 2nd respondent that he had obtained a quotation from the KSIDC for the supply of large number of mobile sets and tabs and these instruments were collected from the shop of the 2nd respondent on that representation and neither its price was paid nor the instruments were returned and that custodial interrogation of the petitioner is
BA.3267/21 6 necessary.
In fact, I do not find a consistent case for the petitioner. In the application he said that he had taken 30 mobile tabs from the 2nd respondent. Such were usual transactions on credit basis, out of which 19 tablets have already been sold out by him and 11 tablets were returned to the 2nd respondent. According to the petitioner, the crime was registered on the premise that price of 19 tablets were outstanding with the 2nd respondent. When heard, the learned counsel submitted that he had sold 19 tablets on credit basis and that was how its price could not be paid to the 2nd respondent. In fact, at the instance of the parties, the matter was referred for mediation but could not be settled. The case of the petitioner was that he is liable to pay the price of 19 tablets alone and that he is prepared to pay the same for which time was sought.
As this was the stand taken by the learned counsel and when it was claimed that there is material document with the petitioner to show that he had returned 11 tablets to the 2nd respondent, the Court insisted the production of that document. It was at that stage that Annexure-A was produced stating that 30 tablets were purchased by paying cash. That claim is denied by the learned counsel for the 2nd respondent as well as the
BA.3267/21 7 learned Public Prosecutor. The consistent case of the 2nd respondent is that an amount of nearly Rs.15 lakhs is due from the petitioner. To be more specific, it includes Rs.9.6 lakhs on account of the purchase of 30 tabs, price of one iphone, that is R.1.6 lakhs, price of two tablets Rs.32,000/- each; thus that amount comes to Rs.11.30 lakhs (9.6 lakhs + 1.7 lakhs). This together with Rs.4 lakhs borrowed by the petitioner on 09.02.2021 comes to Rs.15.30 lakhs, out of which only Rs.80,000/- was repaid by the petitioner. In fact, such a consistent stand was taken by the 2nd respondent from the very outset. This being the position, the argument of the learned counsel for the petitioner that only Rs.4 lakhs less Rs.80,000/- paid by him alone is due to the 2nd respondent cannot be believed.
The argument of the learned counsel that it is a mere money transaction or transaction with regard to the borrowal of Rs.4 lakhs from the 2nd respondent cannot be believed. The 2nd respondent has a case that after making him believe that he had obtained a quotation for the supply of iphones and tablets to the KSIDC, instruments were taken on credit basis which was not paid, has to be believed. It is the common case that an amount of Rs.4 lakhs is due to the 2nd respondent from which only
BA.3267/21 8 Rs.80,000/- was repaid. I do not think to give much importance to such a money transaction. But the consistent case of the 2nd respondent is that the petitioner had taken an iphone and two tablets from the 2nd respondent for the purpose of giving as compliments to the officials of the KSIDC. Secondly, on petitioner's own showing, 30 tablets were delivered to him for Rs.9.6 lakhs. Annexure-A is only an invoice. This document or that fact that there is corresponding indication of payment towards GST is not sufficient to say that that was purchased by payment of cash. If payment was made across the counter, necessarily receipt must have been issued by the 2nd respondent. In the absence of such a receipt, the argument of the learned counsel for the petitioner cannot sustain.
Moreover, it is a matter of common knowledge that liability to pay tax on goods shall arise at the time of supply, or on the date of issue by the invoice by the supplier, whichever is earlier. In other words, even in the absence of payment of money, if invoice is issued, liability to pay tax has arisen.
After hearing counsel on both sides, I am not persuaded to think that the petitioner has come with clean hands. In fact, a relief under Section 438 of the Cr.P.C. is an extraordinary relief which can be
BA.3267/21 9 exercised only sparingly. If the Court has a feeling that the petitioner has not come with clean hands, such a discretionary relief cannot be granted. Here, I have reasons to think that the petitioner has not come with clean hands. Therefore, he is not entitled to get the relief. Moreover, as indicated earlier, the details with regard to the iphone and the tablets taken by the petitioner to be given as compliments have to be collected and custodial interrogation of the petitioner cannot be dispensed with.
Therefore the application is devoid of merit and is dismissed. K. HARIPAL JUDGE okb/9.8.21 //// P.S. to Judge
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.