Deepali D.Jhurmarwala vs. The Commissioner Of Police - Kerala High Court, 05 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUE AY, THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940 W.P.(C).No.586 of 2019 PETITIONER/S: 1 DEEPALI D.JHURMARWALA PROPRIETRIX,JN TRADERS, No.69, NAROTH ROAD,THAMMANAM P.O., ERNAKULAM,PIN 682 032. 2 DEEPAL.R.JHURMARWALA, PROPRIETRIX,C/O JN TRADERS, No.69, NAROTH ROAD,THAMMANAM P.O. ERNAKULAM,PIN 682 032. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENT/S: 1 THE COMMISSIONER OF POLICE, KOCHI CITY,PIN 682 035. 2 THE SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, PALARIVATTOM,KOCHI 682 025. 3 M/S.HEENA AND TRAVELS, OPP.CONSUMERFED, MAVELI ROAD,KADAVANTHRA, ERNAKULAM-682 020. 4 SANJEEV SHARMA, M/S HEENA AND TRAVELS,OPP.CONSUMERFED, MAVELI ROAD,KADAVANTHRA,ERNAKULAM-682 020. W.P.(C).No.586 of 2019 ..2.. 5 RAJ SHARMA, M/S HEENA AND TRAVELS,OPP.CONSUMERFED, MAVELI ROAD,KADAVANTHRA,ERNAKULAM-682 020. 6 JAGADEESH, M/S HEENA AND TRAVELS,OPP.CONSUMERFED, MAVELI ROAD,KADAVANTHRA,ERNAKULAM-682 020. BY ADVS. SRI.T.S.SUHOOD SRI.P.A.NABEL MANAF SRI.T.P.NISHAD KHAN R1 & R2-SR.GP SRI.P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).No.586 of 2019 ..3.. JUDGMENT P.R.Ramachandra Menon, J. Grievance of the petitioners is against the alleged high- handed activities being pursued by the respondents 4 to 6 causing forceful obstruction to the business being pursued by the petitioners.

Heard Sri.P.Sanjay, the learned counsel for the petitioners, Sri.T.S.Suhood, the learned counsel for the respondents 4 to 6 and also Sri.P.P.Thajudeen, the learned Senior Government Pleader for the respondents 1 and 2. 3. It is the case of the petitioners that they are engaged in the business of trading in tissue paper within the State of Kerala on the strength of the relevant certificates/clearance/permit issued by the competent Authorities. It is stated that the petitioners have obtained the necessary GST registration as well.

According to the learned counsel for the petitioners, the petitioners have been supplying the goods in large

W.P.(C).No.586 of 2019 ..4.. quantities and the 3rd respondent is a customer of the petitioners. Despite the timely supply effected at different points of time, no payment was made by the 3rd respondent in respect of the supply for November, 2018. When the 3rd respondent was alerted as to the lapse in this regard and required to effect the payment, the liability was sought to be disputed by the 4th respondent. Thereafter the petitioners were informed that the 3rd respondent had not obtained the goods sent by the petitioners. That apart, the money already paid by the 3rd respondent was required to be returned. This was followed by a forceful intrusion made by the respondents 4 to 6 into the premises of the petitioners and they were threatened of dire consequences, if the money already paid by the 3rd respondent was not returned. This was brought to the notice of the police but there was no proper response and hence the writ petition seeking for a direction to be given to the 1st and 2nd respondents to afford adequate and effective protection to the lives and limbs of the petitioners and also to

W.P.(C).No.586 of 2019 ..5.. enable the petitioners to carry on their business in the premises.

Pursuant to notice issued by this Court the private respondents have entered appearance and filed a counter affidavit. It was submitted by the learned counsel for the said respondents on 15.1.2019, that the said respondents were not causing any forceful obstruction to the petitioners or the business conducted by them in any manner. The said submission was recorded by this Court. The factual aspects have been sought to be asserted by the private respondents by filing a counter affidavit also producing copies of the relevant testimonials as Exts.R3(a) to R3(f). The version of the petitioners is reiterated in the reply affidavit dated 12.2.2019, also producing copies of various documents as Exts.P4 to P9. The learned counsel appearing for the 3rd respondent submits that the 3rd respondent Company has earned a very good name in the market and at no point of time had they committed any default in effecting the payment in respect of

W.P.(C).No.586 of 2019 ..6.. the supply of goods. It is also pointed out that they normally purchased goods twice in an year and they have promptly honoured the payments to the petitioners as and when bills were raised in this regard. When the 3rd respondent was informed that some amounts are pending to be cleared in respect of November, 2018 the matter was enquired into, when it was revealed that instead of raising the bill to the local office of the 3rd respondent, the petitioners had forwarded the invoice directly to the Head Office in Mumbai. It was without verification of the factual position, that the bill was cleared from the Head Office, directly to the petitioners. It was in the said circumstance, that the books of accounts were decided to be verified and it was with this intent that the private respondents visited the premises of the petitioners to go through the books of accounts and ascertain the particulars of delivery stated as effected and as to the payment involved. But for this, there was no attempt on the part of the above respondents to take the law into their hands and no

W.P.(C).No.586 of 2019 ..7.. obstruction has ever been caused, submits the learned counsel.

The learned Senior Government Pleader submits that, based on the complaint preferred by the private respondents as to the extraction of money by the petitioners and non-delivery of goods, a crime has been registered as Crime No.88/2019 of the Palarivattom Police Station in respect of various offences including under Sections 420, 465 and 468 read with Section 34 of the IPC. It is pointed out that investigation is being going on, adding that the magnitude of the dispute is to an extent of nearly Rs.4,87,758/-. The learned counsel for the petitioners submits that because of the apprehended coercive steps sought to be pursued as pressure- tactics by wrongly implicating in a crime, the petitioners had moved the Sessions Court, Ernakulam by filing Crl.M.C.No.161/2019, where Ext.P7 order was passed in terms of Section 438 of the Cr.P.C., granting relief to the requisite extent. Admittedly since a crime has been registered against

W.P.(C).No.586 of 2019 ..8.. the petitioners and investigation is going on, the proceedings have to be taken to logical conclusion. Since the machinery has already been set in motion, the private respondents herein cannot take the law into their hands, who are at liberty to proceed with further steps in accordance with law, including by filing necessary proceedings in respect of civil rights, besides the proceedings now being pursued in respect of the offences stated as involved.

In the said circumstance, the submission made by the learned counsel for the respondents 4 to 6 that they will never cause any forceful obstruction with regard to the business being run by the petitioners, nor will they cause any threat to the lives and limbs of the petitioners, stands recorded. It shall be for the respondent/Police to complete the investigation in Crime No.88/2019 of the Palarivattom Police Station by submitting a final report in terms of Section 173(2) of the Cr.P.C. If there is any violation as to the submission/undertaking given from the part of the

W.P.(C).No.586 of 2019 ..9.. respondents 4 to 6 and if the same is brought to the notice of the police, it shall be acted upon in accordance with law. The writ petition stands disposed of. P.R.RAMACHANDRA MENON, JUDGE N.ANIL KUMAR, JUDGE skj

W.P.(C).No.586 of 2019 ..10.. APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE LIST OF SALE OF GOODS MADE TO THE 3RD RESPONDENT DURING THE YEAR 2018 DATED 1ST APRIL TO 26 DECEMBER 2018. EXHIBIT P2OF THE INVOICES RAISED FOR THE SALE OF GOODS MADE TO THE 3RD RESPONDENT DURING THE YEAR 2018 DATED 9.4.2018 TO 30.11.2018. EXHIBIT P3OF THE COMPLAINT DATED 31.12.2018. RESPONDENTS' EXHIBITS:- EXT.R3(a)OF ACKNOWLEDGMENT RECEIPT PROVIDED BY THE COMMISSIONER OFFICE TOWARDS THE CRL.COMPLAINT FILED BY THE 4TH RESPONDENT DTD.26.12. 18. EXT.R3(b)OF FIR REGISTERED BY THE PALARIVATTOM POLICE STATION AGAINST PETITIONERS DTD.1.14.19 BEARING FIR No.0088/2019. EXT.R3(c)OF COMPANY LOGO AFFIXED ON THE TISSUE NAPKIN. EXT.R3(d) ATTESTED COPY OF ACCOUNTS LEDGER FROM 31.10.14 TILL 16.11. 18. EXT.R3(e)OF THE INVOICE DTD.8.11.18 BEARING INVOICE No.C/12. EXT.R3(f)OF INVOICE SIGNED AND ISSUED BY THE DELIVERING STAFF OF PETITIONER'S COMPANY DTD.12.1.19.