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R. Binu & Another v/s M.K. Kuruvila & Others

    WA Nos. 1397 & 1401 of 2013 IN WP(C) 9619 of 2013

    Decided On, 12 September 2013

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE DR (MRS) MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN

    For the Appellants: P. Vijaya Bhanu, Sr. Advocate, K. Shaj, S. Sajju, Renjit George, Advocates. For the Respondents: R1, A. Dinesh Rao, Advocate, R2 to R5, K.P. Dandapani, Advocate General, P.A. Mohammed Shah, Government Pleader.



Judgment Text

Manjula Chellur, C.J.

1. Writ Appeal No.1401 of 2013 is at the instance of a third party and so far as Writ Appeal No.1397 of 2013 the appellants were the respondents before the learned Single Judge.

2. The party respondent, who was the writ petitioner therein approached the learned Single Judge, explaining the situation faced by him narrating in brief as under:-

He is a native of Kottayam; but settled at Bangalore in the State of Karnataka for the last 35 years. He claims to be proprietor and Managing Director of various companies in the business of construction apart from owning a coffee plantation at Chickamangalore. He narrates how he got acquainted with one Mr.Binu, the 1st appellant in W.A.No.1397/2013, and he proceeds to narrate how Mr.Binu persuaded him and tempted him to invest money in setting up Solar Power Project in major industries and township areas of Kerala

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for which Korean Technology so also technology from United Kingdom could be adopted. According to him, making use of the goodness of the petitioner, the party respondent persuaded him to part with his money, further went to the extent of troubling him threatening him with dire consequences with the alleged assistance of underworld Dons. Narrating several instances, especially the recommendation of none other than the Chief Minister of the State, he complains the inaction on the part of the respondent authorities in initiating any action against the party respondent before the learned Single Judge. In short, he seeks following reliefs at the hands of the learned Single Judge.

"i) Issue writ of mandamus or other appropriate writ, direction or order directing respondents 4 to 6 to proceed with the investigation of the crime narrated in Exhibit P3 complaint, register a comprehensive FIR and take prompt and serious action as directed by the Honourable Chief Minister in Exhibit.P3.

ii) Issue writ of mandamus or other appropriate writ, direction or order directing the 4th to 6th respondent to entrust such investigation of the crime narrated in Exhibit P3 complaint to the Crime Branch of police,

iii) Issue such other appropriate order or direction which this Hon'ble Court may deem fit in the circumstances of the case."

3. When the matter was pending in the writ proceedings, he came out with I.A.No.11603 of 2013 seeking a prayer directing the respondents not to arrest him, the writ petitioner, in cases connected with cases registered against Pan Asia Brokers and Consultants Ltd. and one Forex Trading Company till disposal of the writ petition. The contents of the accompanying affidavit narrates the grievance of the appellant against the party respondents therein and also the move of the Police. However, according to him, apart from registering six cases against him, he has a threat of 25 fresh criminal cases to be registered against him. Therefore, the above reliefs have to be granted.

4. Based on the above contentions and the reliefs sought in the I.A., after hearing the parties to the proceedings, the learned Single Judge passed the impugned order dated 30.08.2013 as under:-

"Learned counsel for the petitioner in the above writ petition is directed to furnish all documents connected with this I.A. to the learned Advocate General as well as to the counsel appearing for respondent nos.1 to 3.

2. Learned counsel for the petitioner in support of the prayer in the above I.A. has pointed out that the writ petitioner proposed to file an application to amend the writ petition, in the light of the subsequent development and since the writ petitioner is implicated in several criminal cases, after filing of the above writ petition, even though he is not the Director of a company, named PAN ASIA BROKERS AND CONSULTANTS LTD., in the light of Exts.P7 to P10, P14 and P15 documents.

3. In the light of the above submission, I am of the view that, to save the interest of justice, it is absolutely necessary to issue an interim order as prayed for, for a period of one month and if respondent nos.1 to 3, who are private parties and respondent nos.4 to 7, want to file counter affidavit in the above I.A., they can file the same within one month from today.

4. In the meanwhile, there will be an interim stay as prayed for, for a period of 1 month and accordingly respondent nos.4 to 7 are directed not to arrest the petitioner in any cases connected with PAN ASIA BROKERS AND CONSULTANTS LTD., particularly, in view of Exts.P7 to P10, P14 and P15 documents."

5. W.A.No.1401 of 2013 is filed by one of the aggrieved parties to the proceedings and W.A.No.1397 of 2013 is filed at the instance of a third party according to whom criminal action is to be initiated against the party respondent herein on his complaint before the concerned Police. The learned Single Judge at paragraph 4 of the orders granted interim relief directing respondents 4 to 7 not to arrest the petitioner for a period of one month in the cases connected with Pan Asia Brokers and Consultants Ltd., particularly in view of Exts.P7 to P10, P14 and P15 before the learned Single Judge.

6. Aggrieved by this, these two appeals are brought before us. According to the learned Senior Counsel Sri.Vijayabhanu arguing for the appellants, the relief sought in the I.A. is altogether a different subject matter and cause of action from the reliefs sought in the writ petition.

7. According to the learned Senior Counsel who is supported by the arguments of the learned Advocate General, the two reliefs sought in the main writ petition are already complied with in view of registration of cases and also by referring the case to the Crime Branch concerned. Therefore there is nothing further to be done so far as the main relief sought in the writ petition. When that being the situation, it was unwarranted on the part of the learned Single Judge to entertain the I.A and grant the interim relief impugned before us.

8. On going through the averments of the writ petition and the averments in the I.A, we note that there are differences of opinion between the parties, so far as the monetary transactions are concerned. Each one is alleging misappropriation of funds and playing fraud to part with the money, against the other. The mere allegations will not take us to any conclusion in the above proceedings unless those allegations have to be dealt with in accordance with the procedure contemplated, if any of the parties intend to take those allegations to its logical end. Already cases are registered and even the investigation is transferred to Crime Branch which completely satisfies the main reliefs sought in the writ petition.

9. The entire averments in the writ petition, is directed against the inaction of the Police in not registering any case against the party respondents; before the learned Single Judge. Whether the main relief could be entertained or not by the learned Single Judge is a different matter. The fact remains, it was open to the writ petitioner to approach the concerned Magistrate with a private complaint seeking action in accordance with the Code of Criminal Procedure.

10. While considering the allegation of inaction, failure to take any kind of action on the complaint of writ petitioner, in spite of recommendation of the Chief Minister of the State, could he ask for a relief as sought in the I.A which altogether is a different subject matter giving rise to a different cause of action? If any action is proposed at the hands of the party respondent like criminal action, the writ petitioner is expected to take steps properly to meet such apprehension only under due process of law contemplated under the Code of Criminal Procedure.

11. In a writ petition filed under Article 226 of the Constitution of India, while considering the writ of Mandamus sought by the writ petitioner, can a relief of above nature which is akin to granting an anticipatory bail be granted, is the question raised before us. The cause of action claimed and asserted in the I.A is entirely different from the cause of action upon which the main relief sought for in the writ petition. We are of the opinion the learned Single Judge on the face of it ought to have rejected the I.A instead of entertaining and granting such relief. No doubt, while exercising jurisdiction of extraordinary nature under Article 226 of the Constitution of India, to meet ends of justice High Court can step in and grant proper relief, but definitely it cannot, if efficacious alternate remedy is available that too by entertaining an I.A for a different cause of action.

We are of the opinion, learned Single Judge was not justified in granting such relief and accordingly appeals are allowed setting aside the order of the learned Single Judge dated 30.08.2013 in I.A.No.11603 of 2013 in W.P.(C) No.9619/2013. However, the writ petitioner, who is party respondent before us, is at liberty to approach proper forum seeking appropriate remedy in accordance with the procedure contemplated
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