This is an application filed by the petitioner seeking the intervention of this court to give direction to the respondents to conduct proper investigation under Article 226 of Constitution of India.
2. It is alleged in the petition that the petitioner is managing a charitable institution and representing more than 128 investors who were cheated by M/s.Bhadra Parks & Resource Ltd. by collecting huge amounts under the pretext that they are launching a project by name “Bay Watch Residency” which is situated facing seashore at Kanyakumari. At the time when they collected the amount, they promised that they have got sufficient land to construct apartments with all certifications and promised that everybody will get a studio apartment within the promised time limit. Almost Rs.7 crores was collected from the investors. The amounts were paid by the investors on various occasions till the end of 2009. Most of the investors have arranged loan for this purpose. As per the terms of the agreement, building has to be handed over to the investors within four years and they also promised that they will take the building on lease for renting out to the tourists and thereby, the investors can earn money as well. They have completed the structure up to the third floor about 40 months back and abandoned the construction after collecting more than Rs.13 crores from the investors. Later, they understood that there was no valid permit and they created forged documents and cheated the investors. So, the petitioner filed a complaint before the Chief Judicial Magistrate Court, Thrissur against the company and nine others and it was referred to the police for investigation under Section 156 (3) of Code of Criminal Procedure. Accordingly, Ext.P1 crime was registered on 01.06.2013. But, they have not conducted proper enquiry. The investigation ought to have been entrusted to Crime Branch as the amount involved is more than 13 crores. Though Ext.P2 representation has been made, no effective steps have been taken to ventilate the grievance of the petitioner. So, the petitioner has no other remedy except to approach this court seeking the following reliefs:
“i) To issue a writ of mandamus directing the second respondent to entrust the investigation to the Crime Branch or any other Special Investigating Agency those who are specialized in detecting economic fraud;
ii) To issue writ of mandamus directing the second respondent to supervise the investigation personally and to submit a report before this Hon'ble Court regarding the stage of investigation;
iii) To issue writ of mandamus directing the second respondent to dispose the representation submitted by the petitioner to entrust the investigation to a specialized investigating agency.”
3. On the basis of the allegations in the petition as directed by this court, 4th respondent earlier filed a statement stating that they are conducting proper investigation and they require three months time to file the final report. Thereafter, they filed additional statement of the 4th respondent wherein they have stated as follows:
“It is respectfully submitted that this respondent had already filed a detailed statement on 05.11.2013 specifying the details of the investigation conducted till then. When the second accused in Crime No.1124/2013 of Town East Police Station, Thrissur one Mr.K.N.Narayanan Namboothiripad was questioned in detail it was stated that the prospective buyers/customers/investors failed to make prompt payment in accordance with terms and conditions of the agreement entered into with the company. In the meanwhile Mr.Linuss who is the Contractor also delayed his work and had overdrawn the amount towards the work. Besides he filed case against the company also. Because of the combined effect of all these factors resulted in acute shortage of funds and the accused was constrained to stop the construction of the apartment. It is further stated by him that the company was intending to sell its assets and to utilize the same for repaying the amount received from the investors, etc.
It is respectfully submitted that from the investigation so far conducted and on the basis of the statement given by the witnesses and also from the seized documents no evidence has been forthcoming to attract offence u/s .468, 471, 477(A) IPC, but on the same time there is sufficient evidence to establish the offence of Cheating and Criminal Breach of Trust. The Investigating Officer has concluded the investigation and charge sheet u/s 406, 420 r/w 34 IPC has been submitted against all the accused persons except A1 before the Hon'ble Judicial First Class Magistrate court, Thrissur on 15.02.2014. True copy of the charge sheet is produced herewith and marked as Annexure R4(a). The matter is now pending on the file of the Hon'ble Chief Judicial Magistrate Court, Thrissur as C.C.No.145/2014.”
4. In the additional report, it was mentioned that during investigation, it was revealed that no offence under Sections 468, 471 and 477(A) of Indian Penal Code were committed, but, they have committed only offence under Sections 406, 420 read with Section 34 of Indian Penal Code and accordingly, investigation was completed and final report was filed showing the above offences against all the accused persons except first accused on 15.02.2014 and it was taken on file as C.C.No.145/14. When this was pointed out to the Counsel for the petitioner when the case came up for hearing today, the learned Counsel submitted that the above statement of the investigating officer may be recorded and the petition may be disposed of with liberty for the petitioner either to file a private complaint to incorporate the offences left out and the persons left out as accused or to adduce evidence in the case, so that, the magistrate, on the basis of evidence, can alter the charge or even to file an application for further investigation under Section 173(8) of Code of Criminal Procedure and the magistrate passing appropriate orders on the same. The above submission of the additional statement of the 4th respondent and also the submissions made by the Counsel for the petitioner are recorded and the petition is disposed of as follows:
The petitioner is at liberty to move the concerned magistrate court for appropriate relief including filing of a protest complaint against the final report filed or to apply for further investigation under Section 173(8) of Code of Criminal Procedure and if such an application is filed, the magistrate shall consider and dispose of the same in accordance with law.
With the above direction and observation, the petition is disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge