Kerala High Court Quashes Proceedings Against Advocate Saiby Jose For Allegedly Cheating Client In 2013

The Kerala High Court on Thursday quashed the proceedings against Advocate Saiby Jose Kidangoor, former President of the Kerala High Court Advocates Association, accused of collecting Rs. 5 Lakh from a client's husband for settling the matrimonial dispute between the parties.

Justice Raja Vijayaraghavan V. observed that the complainant had filed the complaint in a highly belated manner, and had waited 10 years to file the complaint against the petitioner. 

"The complainant cannot plead ignorance to the fact that the petitioner was not representing his wife since 2014. If that be the case, nothing stood in the way of the complainant approaching the police or the court to seek a refund of a sum of Rs 5 lakhs, which by no stretch of imagination can be said to be a merger amount. It is difficult to believe that the complainant did not attempt to move even his little finger to try and get back the amount. The 10-year wait and lack of clarity in the complainant's stance clearly reveal that the objective of the complainant is something else," the Court noted.

As per the factual matrix, the petitioner, Saiby, was representing the wife in a plea for maintenance under Section 125 CrPC and for return of her money and gold ornaments. The action against him was initiated after the husband (de facto complainant) lodged a complaint alleging offences under Sections 406 ('Punishment for Criminal Breach of Trust), 420 ('Cheating and dishonestly inducing delivery of property'), and 506 ('Punishment for criminal intimidation') of the IPC.

The petitioner claimed that the complaint against him was false and baseless, in vengeance of a complaint lodged against the husband's father for threatening his associate. He averred the complaint was filed as part of 'large conspiracy to tarnish his reputation and goodwill'. 

According to the Court, the 'most striking aspect' of the case was that the allegation against the petitioner arose only on March 3, 2023, almost a decade after the alleged incident. Further, the Court noted that considering the complaint before the Bar Council that had been filed by the complainant's father in the year 2013 alleging misconduct on the part of the petitioner. The petitioner had also filed his objection to the said complaint in November 2013. "Given the palpable tension and bitter animosity between the parties, it seems implausible that the complainant would visit the petitioner's residence within a month on 15.12.2013, and offer a sum of Rs. 5 lakhs to retract the complaints," the Court added in this regard. 

The Court also took note that the complainant had no case that the alleged sum of Rs 5 Lakhs which he believed would be handed over to his wife, had settled his disputes with the latter. 

The Court also found merit in the contention raised by the counsel for the petitioner that his decision to "run for the post of the President of the Kerala High Court Association may have ruffled some feathers". 

As regards the question of the complaint being barred by limitation, the Court observed that it had been settled by the Apex Court in Amritlal v Shantilal Soni & Ors. (2022) that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. The Court was thus of the opinion that the de facto complainant had lodged the complaint belatedly. 

The Court also perused various precedents to observe that its inherent power under Section 482 Cr.P.C. could be invoked in those cases where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; or where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

"In the exercise of powers under Section 482 of the Code, this Court will be justified in quashing any proceeding if it finds that initiation or continuance of the proceedings amounts to abuse of the process of the court. Having considered the facts of the instant case in the light of the principles laid above, I have no doubt in my mind that the allegations are vexatious and frivolous and made only to spite the petitioner. In that view of the matter, I hold that the continuance of the criminal proceedings against the petitioner would result in an abuse of process," the Court held, while allowing the plea and quashing the proceedings. 

It is worthwhile to note that Saiby is also accused of taking money from clients in the name of bribing judges. He had approached the High Court seeking to quash the FIR in this regard and to stay all further proceedings. The Ernakulam Central Police Station has booked him under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code.

In his defence, Saiby said a group of lawyers had concocted a false complaint to the Registrar General who in turn informed the State Police Chief to investigate the matter. The State Police Chief had directed the City Commissioner of Police to conduct a preliminary enquiry. However, no inculpatory evidence was brought on record, Saiby claimed.

That matter is currently pending before another Bench in the High Court.

Case Title: Saiby Jose Kidangoor v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 413 

Case Number: Crl.MC 1966 of 2023

Counsel for the Petitioner: Senior Advocate S. Sreekumar, Advocates M.R. Nandakumar, Babu S. Nair, and P. Martin Jose

Click Here To Read/Download The Order