IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 CRL.MC.NO. 1426 OF 2010() ----------------------------------------- CC.820/2009 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): ----------------------- SHEELAKUMARI D/O.OMANA AMMA, CHRIYIL HOUSE KUDAPPANAKKUNNU PO, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SHIHARUDDEEN, PATTARUTHOPPIL HOUSE THOTTINUVADAKKU MURI, CHAVARA, KOLLAM DISTRICT. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA R1 ADV. SRI.C.S.MANU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1426 of 2010 ==================================== Dated this the 11th day of March, 2011 O R D E R Petitioner is the third accused in Crime No.130 of 2009 of Chavara police station and C.C. No.820 of 2009 of of the court of learned Judicial First Class Magistrate, Karunagappally for offence punishable under Section 420 read with Section 34 of the Indian Penal Code. Petitioner seeks to quash the proceeding against her on the ground that she is not in any way involved in the alleged incident and that she has been falsely implicated. 2. Petitioner and the second accused are children of the first accused. Case is that petitioner and accused 1 and 2 in order to cheat the second respondent made the latter believe that there is no encumbrance over 15 cents in R.S. No.37/4 of Chavara Village and on that representation respondent No.2 agreed to purchase the said property for consideration and accordingly an agreement was executed between the second respondent and the first accused on 10.03.2008. It is alleged that the first accused received `2,25,000/- as advance on the date of the said agreement. Later second respondent learned that the property agreed to be sold is under attachment in O.S. No.131 of 2004 of CRL.M.C. No.1426 of 2010 -: 2 :- the court of learned Musiff, Karungappally. Petitioner and accused 1 and 2 offered to clear that liability and received `3,50,000/- from the second respondent on 31.03.2008. First accused executed yet another agreement on 11.06.2008 to that effect but refused to execute the sale deed or return the sum of `5,75,000/- already received by her. Hence the complaint. The complaint was forwarded to the police for investigation. Police after investigation submitted final report against all the accused including petitioner. Learned counsel contended that on 10.03.2008 petitioner was not even present at the time of execution of the agreement as she was working in a bank in Pathanamthitta District on that day. It is also contended that the allegations in the complaint and materials produced are not sufficient to show that petitioner was a party to agreement and at any rate had cheated the second respondent. Counsel for second respondent contended that issue is required to be thrashed out in evidence and quashing of proceeding against petitioner is not warranted at this stage. I have heard learned counsel for petitioner, second respondent and the learned Public Prosecutor. 3. The Supreme Court in State of Haryana v. Bhajan Lal (AIR 1992 SC 604 in paragraph 108) has given the CRL.M.C. No.1426 of 2010 -: 3 :- circumstances under which High Court could interfere under Section 482 of the Code of Criminal Procedure and quash proceedings. When proceedings are mala fide or allegations taken on face value would not reveal an offence it is possible for the High Court to interfere in the matter. In Pulin Behari Das V. Ermperor (13 Crl. LJ. 609) it is held that a complaint should contain a statement of facts relied upon as constituting the offence in ordinary and concise language, with as much certainty as the nature of the case would admit. A complaint in which no facts are set forth but the words of the Section of the Statute are literally copied is a colourable compliance with the requirements of the Statute. Particulars of the offence is required to be stated. 4. I have gone through the copy of the agreements dated 10.03.2008 and 11.06.2008 which is available in the CD file given to by the learned Public Prosecutor for perusal as also the copy of complaint. In the complaint second respondent stated that first accused agreed to sell the property to him in the presence of petitioner and the second accused and after discussing with them executed the agreement and `2,25,000/- was taken as advance. Later second respondent learned that there is encumbrance over CRL.M.C. No.1426 of 2010 -: 4 :- the property as there was an attachment from the Musiff's court Karunagappally in O.S. No.131 of 2004. Thereafter second respondent contacted the first accused, petitioner and second accused and for the purpose of discharging liability over the property a further sum of `3,50,000/- was paid to the first accused on 31.03.2008 and on 11.06.2008 the first accused executed yet another agreement in favour of the second respondent. 5. It is true that in the agreement dated 10.03.2008 there is no specific mention about the court attachment in O.S No.131 of 2004 but in that agreement there is reference to liability over the property towards the Housing Board. In the agreement dated 11.06.2008 executed between the second respondent and first accused it is stated that on 10.03.2008 `2,25,000/- was received from the second respondent for discharging liability over the property towards the Housing Board and on account of cheque cases pending (obviously against first accused). 6. I am not going into the involvement of accused 1 and 2 in the alleged incident. I am only concerned with the alleged involvement of petitioner-third accused in this case. Though second accused is said to be a signatory in the two agreements, CRL.M.C. No.1426 of 2010 -: 5 :- petitioner-third accused is not a signatory to the said agreements. Even the presence of petitioner at the time of execution of the agreements is not mentioned therein. Admittedly property belonged to the first accused and petitioner has no interest in the said property. There is also nothing on record to show, even if it is assumed that existence of cheque cases and attachment were concealed from the second respondent at the time of execution of agreement on 10.03.2008 and petitioner also had made the second respondent believe that there was no such liability on the property that the petitioner was aware that there was any such liability over the property as on the date of execution of agreement dated 10.03.2008. Unless the petitioner was aware of the existence of any such liability question of her suppressing the same and thereby cheating the second respondent did not arise. Mere allegation in the complaint that it is after discussing with the petitioner also that the first accused decided to sell the property is not sufficient to warrant a conclusion that petitioner is involved in the alleged act of cheating. I have gone through the statement of witnesses including the second respondent recorded by the police during the course of investigation. There of course it is stated that petitioner was present at the time of execution of CRL.M.C. No.1426 of 2010 -: 6 :- the agreement. As I stated, even it is assumed so, that does not mean that petitioner is a party to the alleged cheating in that she was aware of the existence of liability on the property and suppressed the same from the notice of the second respondent. In these circumstances I am persuaded to think that proceeding against petitioner-third accused is not bona fide and cannot stand. Resultantly, Criminal Miscellaneous Case is allowed. Final report against petitioner-third accused in Crime No.130 of 2009 of Chavara Police Station, cognizance taken thereon and proceeding against petitioner in C.C. No.820 of 2009 of the court of learned Judicial First Class Magistrate, Karunagappally are quashed. Criminal Miscellaneous Application No.2309 of 2010 shall stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv