IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH FEBRUARY, 2008 / 17TH MAGHA, 1929 Crl.MC.No. 2751 of 2004 - D --------------------------------- (C.C.No.1289 of 2004 of the Judicial First Class Magistrate Court-II, Kochi) PETITIONER/ACCUSED: ----------------------------- PETER, S/O.GEORGE, AGED 43 YEARS, PEREMPILLI HOUSE, NEAR C.L.F.CONVENT, KUMBALANGI VILLAGE. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS/COMPLAINANT: --------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THILAKAN, S/O.KRISHNAN, DEVI KRIPA, ILLIKKAL BHAGOM, KUMBALANGI VILLAGE. R1 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. R2 BY ADV. SRI.V.VENUGOPALAN NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 2751 of 2004 - D --------------------------------------------- Dated this the 6th day of February, 2008 O R D E R The petitioner is the sole accused in C.C.No.1289 of 2004 of the Judicial First Class Magistrate Court-II, Kochi for the offences punishable under Sections 406 and 420 of the Indian Penal Code (hereinafter referred to for short as 'the I.P.C'). The petitioner preferred the above M.C. seeking to quash all further proceedings in C.C.No.1289 of 2004 of the Judicial First Class Magistrate Court-II, Kochi, on the ground that no offence is revealed against him and the proceedings taken against the petitioner will amount to abuse of process of the court. 2. The petitioner herein is the only accused in Crime No.253 of 2003 of the Kochi Cusba Police Station for the offences punishable under Sections 406 and 420 of the I.P.C. The above crime was registered on the basis of the complaint filed by the second respondent before the J.F.C.M.Court-II which was forwarded by the learned Crl.M.C.No.2751 of 2004 :-2-: Magistrate under Section 156(3) of the Code of Criminal Procedure to the Kochi Cusba Police Station for investigation. The second respondent herein is the de facto complainant. After registration of the above crime, an investigation was conducted by the Police and a final report was filed, a copy of which is produced as Annexure A3 in this M.C. Annexure A2 is the First Information Report. According to the de facto complainant, the allegation is that the petitioner with an intention to cause wrongful loss to the de facto complainant and his wife and to obtain wrongful gain, after making mis-representation, sold the north-eastern corner of the terrace of the first floor of the shopping complex owned by the petitioner for a total consideration of Rs.40,000/-. It is the further case of the de facto complainant that after the purchase of the said property by his wife, by spending a sum of Rs.7 lakhs the de facto complainant had constructed a residential flat in the above space purchased by them. Now, the allegation is that the petitioner/accused, while Crl.M.C.No.2751 of 2004 :-3-: constructing pillars in the first floor that too against the approved plan, caused certain cracks and crevices on the building of the de facto complainant, and therefore, according to the de facto complainant, he was cheated. Thus, on the said allegation, a private complaint was made before the court below which was forwarded under Section 156(3) of the Criminal Procedure Code to the Kasba Police Station wherein Crime No.252 of 2003 was registered and after investigation into the above crime, a final report was filed on the basis of which C.C.No.1289 of 2004 was instituted in the court below. The above case and proceedings thereon are being challenged in this Crl.M.C. 3. I have heard the learned counsel for the petitioner as also the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submits that going by the entire allegations contained in Annexure A2 F.I.R. and Annexure A3 Final Charge Sheet, it can be seen that no criminal offence is disclosed, and what can be gathered is only a civil Crl.M.C.No.2751 of 2004 :-4-: transaction between the petitioner and the de facto complainant and therefore, no criminal proceedings can be maintained against the petitioner and the very institution of the criminal case itself in the court below will amount to abuse of process of court. Along with the M.C., the petitioner has produced Annexure A1 agreement entered into between the petitioner herein and the wife of the de facto complainant who is the second respondent in this M.C., regarding the sale of the property in question. Going by Annexure A1 document and also from the averments contained in the M.C., it can be seen that the property covered by Annexure A1 document is part of a shopping complex constructed in 8.210 cents lying in Sy.No.1238/3 and 1664 of Kumbalangi Village belonging to the petitioner herein. It is submitted by counsel for the petitioner that the ground floor construction is completed and there are altogether 11 shop rooms and remaining constructions are already over. Now, the case of the de facto complainant is that certain cracks were occurred on the Crl.M.C.No.2751 of 2004 :-5-: walls of the residential flat constructed by the de facto complainant in the space purchased by him and it is so happened because of the construction made by the petitioner/accused in violation of the plan approved by the Grama Panchayath and as a result of which the de facto complainant sustained financial loss and the petitioner herein obtained wrongful gain. 5. It is relevant to note that pursuant to Annexure A1 agreement for sale, the transaction has taken place and subsequently, the de facto complainant had constructed the residential flat thereon and he and his wife are now residing there. The de facto complainant has no case that there is any failure on the part of the accused in performing his part on the basis of Annexure.A1 agreement nor he has a case that the petitioner had made any misrepresentation with any intention to cheat the second respondent or his wife who is party to Annexure A1 agreement. There is also no dispute regarding the title of the property and there is no allegation or averment that Annexure A1 agreement Crl.M.C.No.2751 of 2004 :-6-: was entered into for cheating the de facto complainant or his wife. What is discernible from Annexure A2 First Information Report and Annexure A3 final report is that due to the construction made by the petitioner, certain alleged damages were caused to the residential flat of the de facto complainant. Apart from the above allegation, there is no factual averment or data supplied so as to constitute any ingredients to attract Sections 406 and 420 of the Indian Penal Code. 6. The civil dispute, if any, cannot be converted into a criminal proceedings so as to wreck vengeance against the opponent. The civil liability, if any, cannot be treated as a shortcut for criminal action, clearly based upon a civil transaction. In this juncture, it is relevant to note that the counsel for the petitioner brought to my notice that the second respondent herein had already preferred a suit against the petitioner herein before the Additional Munsiff's Court, Kochi and the case is pending there as O.S.No.504 of 2003. The above conduct of the second respondent shows that Crl.M.C.No.2751 of 2004 :-7-: whatever grievance he had is only civil in nature and he had already approached the civil court for redressal of such grievances. 7. In the light of the above discussion and considering the particular facts and circumstances involved in the case, I am of the view that Annexures A2 and A3 do not disclose any materials so as to attract the ingredients of Sections 406 and 420 I.P.C. and therefore, the institution of criminal case on the basis of Annexure A3 charge sheet will amount to abuse of process of the court and as such all the proceedings pursuant to C.C.No.1289 of 2004 pending before the Judicial First Class Magistrate Court-II, Kochi are liable to be quashed and it is ordered accordingly. The Crl.M.C. is allowed. V.K.Mohanan, Judge Mbs/ Crl.M.C.No.2751 of 2004 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.M.C.NO. OF 200 -------------------------------------------- Crl.M.C.No.2751 of 2004 :-9-: J U D G M E N T DATED: -2-2008 Crl.M.C.No.2751 of 2004 :-10-: