Abdul Saleem vs. State Of Kerala - Kerala High Court, 08 July 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941 Crl.MC.No.4192 of 2019 CRL.R.P.NO. 17/2019 OF THE II ADDITIONAL SESSIONS COURT, MANJERI DATED 15-06-2019 CMP NO.1355/2019 OF THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI DATED 24-04-2019 CRIME NO.150/2019 OF Manjeri Police Station, Malappuram PETITIONER/REVISION PETITIONER/DE FACTO COMPLAINANT: ABDUL SALEEM, AGED 40 YEARS, S/O.MUHAMMED, VATTAPPARAMBIL HOUSE, KARUVAMBRAM P.O., PALAKKULAM, MANJERI, ERANAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.ANAND (A-1921) SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY RESPONDENTS/STATE/ACCUSED: 1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031 (CRIME NO.150/2019 OF MANJERI POLICE STATION, MALAPPURAM DISTRICT). 2 FASIL, AGED 25 YEARS, S/O.ABDUL NAZAR, MADAYI HOUSE, KARUVAMBRAM AMSOM, MELAKAM DESOM, ERANAD TALUK, MALAPPURAM DISTRICT, PIN- 676505. R1 BY SRI.AJITH MURALI, PUBLIC PROSECUTOR R2 BY ADVS. SRI.P.S.ABDUL KAREEM SRI.R.ABDUL AHAD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.07.2019, ALONG WITH Crl.MC.4202/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MCs.4192 & 4202/19 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941 Crl.MC.No.4202 of 2019 Crl. R.P.NO. 18/2019 OF THE II ADDITIONAL SESSIONS COURT, MANJERI DATED 15-06-2019 CMP NO.1167/2019 OF THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI DATED 24-04-2019 CRIME NO.150/2019 OF MANJERI POLICE STATION, MALAPPURAM PETITIONER/REVISION PETITIONER/DE FACTO COMPLAINANT: ABDUL SALEEM, AGED 40 YEARS, S/O. MUHAMMED, VATTAPPARAMBIL HOUSE, KARUVAMBRAM P.O, PALAKKULAM, MANJERI, ERANAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.ANAND K. RESPONDENTS/STATE/ACCUSED: 1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, (CRIME NO.150.2019 OF MANJERI POLICE STATION, MALAPPURAM DISTRICT). 2 FASIL, AGED 25 YEARS, S/O. ABDUL NAZAR, MADAYI HOUSE, KARUVAMBRAM AMSOM, MELAKAM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT-676805. R1 BY SRI.AJITH MURALI, PUBLIC PROSECUTOR R2 BY ADVS. SRI.P.S.ABDUL KAREEM SRI.R.ABDUL AHAD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.07.2019, ALONG WITH Crl.MC.4192/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MCs.4192 & 4202/19 3 ORDERxxx These petitions are filed by the de facto complainant in Crime No.150 of 2019 of the Manjeri Police Station. The aforesaid crime was registered, inter alia, under Sections 468, 471, 381 and 429 of the IPC.

On the basis of an application filed by the petitioner, the learned Chief Judicial Magistrate issued an order directing the Station House Officer, Manjeri, to conduct a search in the premises of M/s.Europet Polymers, run by the 2nd respondent herein, and to seize certain machineries, which were used for manufacturing plastic bottles. The machines which include a semi automatic pet stretch blowing machine, a high pressure air compressor, a chiller machine and some moulds were seized. Separate applications were filed by the petitioner herein and the 2nd respondent under Section 451 of the Cr.P.C. before the learned Magistrate. The application filed by the 2nd respondent was allowed and interim custody of the machineries was granted to him on conditions. The application filed by the petitioner was rejected.

Against the order passed by the learned Magistrate, separate revision petitions were filed before the learned Sessions Judge. After reconsidering the materials on record, the learned Sessions Judge dismissed the revision petitions. The said orders are under challenge in this petition filed under Section 482 of the Cr.P.C.

Crl.MCs.4192 & 4202/19 4

I have heard the submissions advanced by Sri.K.K.Dheerendra Krishnan, the learned counsel appearing for the petitioner, Sri. Abdul Kareem F.S., the learned counsel appearing for the 2nd respondent, and the learned Public Prosecutor. I have perused the orders passed by the learned Magistrate as confirmed by the learned Sessions Judge. I have also had the advantage of going through the materials which were made available by the respective counsel.

In the complaint filed by the petitioner before the learned Magistrate, his case was that the 2nd respondent used to work as a Manager at M/s.Sonapet Industries of which, he is the proprietor, from 2015 to 2019 and that during this period, he had committed manipulations in the account and had misappropriated a sum of Rs.25 lakhs. The petitioner also has a case that in the month of February, 2019, he was out of Station for a couple of weeks and that when he had returned back, he realised that the valuable machineries installed in his business premises had been removed illegally by the 2nd respondent. The said complaint was lodged by him before the police on 11.3.2019. However, the records produced before this Court by the party respondent reveals a totally different picture. It appears that the father of the 2nd respondent and the petitioner herein had entered into an arrangement in the year 2015 as per which, the father of the 2nd respondent had pumped in some money in the business run by the petitioner. Apparently, they were jointly managing the business till the early part of 2019, when disputes arose. Though a partnership

Crl.MCs.4192 & 4202/19 5 deed was executed, the same was not registered. The father of the 2nd respondent herein is seen to have issued a legal notice on 11.2.2019 addressed to the petitioner demanding refund of money and raising some other demands. This fact is evident from Annexure-R2(B). It is undisputed that the petitioner herein filed a caveat petition before the Sub Court, Manjeri, on 14.3.2019, arraying the father of the 2nd respondent as the expected applicant. It is obvious that the caveat petition was filed after the receipt of Annexure-R2(B) legal notice. I also find from Annexure-R2(E) that the 2nd respondent herein had approached the Munisiff Court, Manjeri and had filed a suit for injunction and interim relief was granted to him. Annexure-R2(L) D & O Licence issued by the Thrikkalangod Grama Panchayat, reveals that the 2nd respondent was granted a licence to operate a pet bottle production unit, as early as on 16.1.2018. The 2 nd respondent has a case that he had, in fact, purchased the blowing machine from M/s.Sai Samarth Enterprises, after availing a loan from the Canara Bank. Annexure-R2(G) certificate issued from the Canara Bank also reveals that they had granted a loan to him to purchase a stretch blow molding machine. There are records revealing that amount was transferred from the account of the 2 nd respondent to the manufacturer. Insofar as the blowing machine is concerned, there are records showing that the G.S.T. Number of M/s.Sonapet Industries was used to purchase the machine. The explanation offered by the 2nd respondent is that M/s.Europet Polymers was not having G.S.T. registration and due to the cordial relationship that existed between the parties, the registration

Crl.MCs.4192 & 4202/19 6 of M/s.Sonapet was used for purchasing the item. This explanation, prima facie, appears to be believable as the petitioner and the father of the 2nd respondent were partners of the same business establishment. Furthermore, it appears that the money for purchase of the machines had gone from the account of the 2 nd respondent.

Clearly, the true facts have not been stated by the petitioner herein in his complaint before the police. In the light of the partnership agreement and the convincing records, which reveal that the 2nd respondent herein was also running a business in manufacturing of plastic bottles, at least from January, 2018 onwards, I find it difficult to hold, at this stage, that the allegation of theft is on a solid footing. The contention of the 2nd respondent that a false complaint was lodged after the relationship between the parties went awry cannot be brushed aside at this stage. Furthermore, the learned Public Prosecutor, on instructions, submitted that the investigation revealed that the offence of theft has not been made out and Section 381 of the IPC has been deleted. Both the courts below took note of the fact that the machineries were seized from the premises of M/s.Europet Polymers owned by the 2nd respondent herein and, therefore, he is entitled to interim custody. I have no doubt in my mind that the trial court has exercised its discretion judicially and based on the materials on record. In a case of instant nature, wherein machineries are involved, a detailed adjudication as to the claims cannot be undertaken by the criminal court. This is because, the criminal court is not a forum for determining the complicated issues

Crl.MCs.4192 & 4202/19 7 of title, which must necessarily go for decision before a civil court. The duty cast upon the learned Magistrate is to expeditiously decide as to who, prima facie, is entitled to possession and entrust the machineries to such a claimant leaving the defeated party to seek his remedies before the civil court. After considering all materials, I am of the view that the petitioner has not been able to show that the orders passed by the learned Magistrate as confirmed by the learned Sessions Judge in revision suffer from any perversity or error resulting in grave miscarriage of justice warranting interference by this Court. These petitions will stand dismissed confirming the orders passed by the courts below. RAJA VIJAYARAGHAVAN V., JUDGE DSV/9.7.19

Crl.MCs.4192 & 4202/19 8 APPENDIX OF Crl.MC 4192/2019 PETITIONER'S/S EXHIBITS: ANNEXURE IOF THE ORDER DATED 08.03.2019 IN CMP NO.954/2019 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, MANJERI. ANNEXURE IIOF THE FIRST INFORMATION REPORT ALONG WITH FIRST INFORMATION STATEMENT IN CRIME NO.150/19 OF MANJERI POLICE STATION. ANNEXURE IIIOF THE CMP NO.1167/19 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE IVOF THE OBJECTION SUBMITTED BY THE SECOND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE VOF THE CMP NO.1355/19 FILED BY THE 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE VIOF THE OBJECTION SUBMITTED BY THE PETITIONER IN CMP NO.1355/19 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE VIIOF THE ORDER DATED 24.04.2019 IN CMP NO.1335/19 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, MANJERI. ANNEXURE VIII CERTIFIED OF THE COMMON ORDER DATED 15.06.2019 IN CRL.R.P.NO.17/2019 AND CRL.R.P.NO.18/2019 PASSED BY THE II ADDL.SESSIONS JUDGE, MANJERI. ANNEXURE IXOF THE TAX INVOICE DATED 14-08-2017 ISSUED IN THE NAME OF THE PETITIONER. ANNEXURE XOF THE INVOICE DATED 09-04-2014 ISSUED IN THE NAME OF VPM TRADERS FOR WHICH THE PETITIONER IS THE PROPRIETOR. ANNEXURE XIOF THE GST REGISTRATION CERTIFICATE. ANNEXURE XIIOF THE CERTIFICATE ISSUED FROM THE COMMERCIAL TAXES DEPARTMENT, GOVT. OF KERALA. RESPONDENT'S/S EXHIBITS: ANNEXURE R2(A)OF THE AGREEMENT ENTERED INTO AND EXECUTED BY THE PETITIONER AND FATHER OF 2ND RESPONDENT SRI.ABDUL NASAR DATED 21.04.2015. Crl.MCs.4192 & 4202/19 9 ANNEXURE R2(B)OF THE LAWYER NOTICE SENT AT THE INSTANCE OF SRI.ABDUL NASAR TO THE PETITIONER DATED 11.02.2019. ANNEXURE R2(C)OF THE PETITION IN OP(CAVEAT) NO.32 OF 2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE SUB COURT, MANJERI DATED 14.03.2019. ANNEXURE R2(D)OF THE PLAINT IN OS NO.68 OF 2019 FILED BY THE 2ND RESPONDENT BEFORE THE HONOURABLE MUNSIFF'S COURT, MANJERI DATED 13.02.2019. ANNEXURE R2(E)OF THE ORDER PASSED BY THE HONOURABLE MUNSIFF'S COURT, MANJERI IN IA NO.291 OF 2019 DATED 13.02.2019. ANNEXURE R2(F)OF STATEMENT OF LOAN ACCOUNT NO. 3787766000005 OF 2ND RESPONDENT MAINTAINED AT CANARA BANK FOR THE PERIOD FROM 01.08.2017 TO 28.02.2019. ANNEXURE R2(G)OF THE CERTIFICATE ISSUED FROM THE CANARA BANK, THRIKKALANGODE BRANCH, MALAPPURAM DATED 12.03.2019. ANNEXURE R2(H)OF THE ACCOUNT STATEMENT OF THE SB NO.ACCOUNT NO.3787101010660 OF THE 2ND RESPONDENT FROM 09.08.2017 TO 20.08.2017. ANNEXURE R2(I)OF LETTER ISSUED BY THE SAI SAMARTH ENTERPRISES, MUMBAI DATED 12.03.2019. ANNEXURE R2(J)OF LETTER SENT BY M/S. PURE SAC INTERNATIONAL TO THE 2ND RESPONDENT. ANNEXURE R2(K)OF THE ORDER NO. B4-6339/2017 ISSUED BY THE SECRETARY, THRIKKALANGODE PANCHAYAT DATED 11.12.2017. ANNEXURE R2(L)OF D&O LICENSE ISSUED FROM THRIKKALANGODE GRAMA PANCHAYAT IN FAVOUR OF THE 2ND RESPONDENT DATED 16.01.2018. ANNEXURE R2(M)OF THE PERMANENT WORK REGISTER ISSUED BY MR. SIVADASAN A.V., ELECTRICAL CONTRACTOR, PANNIPPARA, EDAVANNA. ANNEXURE R2(N)OF THE D&O LICENSE ISSUED FROM THRIKKALANGODE GRAMA PANCHAYAT TO THE PETITIONER DATED 21.05.2016. ANNEXURE R2(O)OF THE REPORT IN CRL.M.P.NO.1355/2019 FILED BY THE 1ST RESPONDENT POLICE BEFORE THE HONOURABLE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.

Crl.MCs.4192 & 4202/19 10 APPENDIX OF Crl.MC 4202/2019 PETITIONER'S/S EXHIBITS: ANNEXURE IOF THE ORDER DATED 08.03.2019 IN CMP NO.954/2019 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, MANJERI. ANNEXURE IIOF THE FIRST INFORMATION REPORT ALONG WITH FIRST INFORMATION STATEMENT IN CRIME NO.150/19 OF MANJERI POLICE STATION. ANNEXURE IIIOF THE CMP NO.1167/19 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MAJERI. ANNEXURE IVOF THE OBJECTION SUBMITTED BY THE SECOND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE VOF THE CMP NO.1355/19 FILED BY THE 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJRI. ANNEXURE VIOF THE OBJECTION SUBMITTED BY THE PETITIONER IN CMP NO.1355/19 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. ANNEXURE VIIOF THE ORDER DATED 24.04.2019 IN CMP NO.1355/19 PASSED BY THE CHIEF JUDICIAL MAGISTRATE MANJERI. ANNEXURE VIII TRUE CERTIFIED COPY OF THE COMMON ORDER DATED 15.06.2019 IN CRL.RP NO.17/2019 AND CRL.R.P.NO.18/2019 PASSED BY THE II ADDL.SESSIONS JUDGE, MANJERI. ANNEXURE-IXOF THE TAX INVOICE DATED 14.08.2017 ISSUED IN THE NAME OF THE PETITIONER. ANNEXURE-XOF THE INVOICE DATED 09.04.2014 ISSUED IN THE NAME OF VPM TRADERS FOR WHICH THE PETITIONER IS THE PROPRIETOR. ANNEXURE-XIOF THE GST REGISTRATION CERTIFICATE ANNEXURE-XIIOF THE CERTIFICATE ISSUED FROM THE COMMERCIAL TAXES DEPARTMENT, GOVT. OF KERALA.

Crl.MCs.4192 & 4202/19 11 RESPONDENT'S/S EXHIBITS: ANNEXURE R2(A)OF THE AGREEMENT ENTERED INTO AND EXECUTED BY THE PETITIONER AND FATHER OF 2ND RESPONDENT SRI.ABDUL NASAR DATED 21.04.2015. ANNEXURE R2(B)OF THE LAWYER NOTICE SENT AT THE INSTANCE OF SRI.ABDUL NASAR TO THE PETITIONER DATED 11.02.2019. ANNEXURE R2(C)OF THE PETITION IN OP(CAVEAT) NO.32 OF 2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE SUB COURT, MANJERI DATED 14.03.2019. ANNEXURE R2(D)OF THE PLAINT IN OS NO.68 OF 2019 FILED BY THE 2ND RESPONDENT BEFORE THE HONOURABLE MUNSIFF'S COURT, MANJERI DATED 13.02.2019. ANNEXURE R2(E)OF THE ORDER PASSED BY THE HONOURABLE MUNSIFF'S COURT, MANJERI IN IA NO.291 OF 2019 DATED 13.02.2019. ANNEXURE R2(F)OF STATEMENT OF LOAN ACCOUNT NO. 3787766000005 OF 2ND RESPONDENT MAINTAINED AT CANARA BANK FOR THE PERIOD FROM 01.08.2017 TO 28.02.2019. ANNEXURE R2(G)OF THE CERTIFICATE ISSUED FROM THE CANARA BANK, THRIKKALANGODE BRANCH, MALAPPURAM DATED 12.03.2019. ANNEXURE R2(H)OF THE ACCOUNT STATEMENT OF THE SB NO.ACCOUNT NO.3787101010660 OF THE 2ND RESPONDENT FROM 09.08.2017 TO 20.08.2017. ANNEXURE R2(I)OF LETTER ISSUED BY THE SAI SAMARTH ENTERPRISES, MUMBAI DATED 12.03.2019. ANNEXURE R2(J)OF LETTER SENT BY M/S. PURE SAC INTERNATIONAL TO THE 2ND RESPONDENT. ANNEXURE R2(K)OF THE ORDER NO. B4-6339/2017 ISSUED BY THE SECRETARY, THRIKKALANGODE PANCHAYAT DATED 11.12.2017. ANNEXURE R2(L)OF D&O LICENSE ISSUED FROM THRIKKALANGODE GRAMA PANCHAYAT IN FAVOUR OF THE 2ND RESPONDENT DATED 16.01.2018. ANNEXURE R2(M)OF THE PERMANENT WORK REGISTER ISSUED BY MR. SIVADASAN A.V., ELECTRICAL CONTRACTOR, PANNIPPARA, EDAVANNA.

Crl.MCs.4192 & 4202/19 12 ANNEXURE R2(N)OF THE D&O LICENSE ISSUED FROM THRIKKALANGODE GRAMA PANCHAYAT TO THE PETITIONER DATED 21.05.2016. ANNEXURE R2(O)OF THE REPORT IN CRL.M.P.NO.1167/2019 FILED BY THE 1ST RESPONDENT POLICE BEFORE THE HONOURABLE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI. //// P.A.TO JUDGE