IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 3226 of 2009() ------------------------------------ CRIME NO.357/2008 OF VADAKKANCHERRY POLICE STATION. ........ PETITIONER(S): ACCUSED ---------------------- 1. NARAYANIKUTTY AMMA.P, PUTHEN VEETTIL HOUSE,KARUMATHRA.P.O, TRICHU DISTRICT. 2. SATHYA NARAYANAN,S/O.NARAYANIKUTTY AMMA, CHEERATH SRAMBIYIL HOUSE,MLA ROAD,KUTTOOR.P.O, TRICHUR DISTRICT. BY ADV. MR.P.K.ANIL RESPONDENT(S): DEFACTO COMPLAINANT/STATE --------------------------- 1. SIVADAS.A.AMBAKKAT HOUSE,KARUMATHRA.PO, TRICHUR DISTRICT. 2. SUB INSPECTOR OF POLICE,VADAKKANCHERRY POLICE STATION. 3. STATE REP; BY P.PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV . MR.C.A.CHACKO R2 & R3 PUBLIC PROSECUTOR MR.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON 15/02/2010 PASSED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 3226 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February, 2010. ORDER In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners seek to have all further proceedings in C.C. 68 of 2009 on the file of the Judicial Magistrate of the First Class, Vadakkancherry, which arose from Crime No.357 of 2008 of Vadakkancherry Police Station, quashed. 2. The petitioners are accused in C.C.68 of 2009 on the file of JFCM, Vadakkancherry arising from Crime No. 357 of 2008 of Vadakkancherry Police Station for having committed offences punishable under Sections 406, 417 and 420 read with Section 34 of the Indian Penal Code. 3. The first respondent in these proceedings laid a private complaint before the JFCM, Vadakkancherry. The first respondent entered into an agreement for sale with the petitioners on 23.3.2005. Crl.M.C.3226/2009. 2 They agreed to sell 44 and three fourth cents of property comprised in Sy. No.51/3 of Karumathra Village in Thrissur District at a price of Rs.20,000/- per cent for the measured area. It is stated in the complaint that the petitioners had promised to get consent of others, who had interest in the property. The complaint says that on the date of agreement itself a sum of Rs.5,000/- was received as advance. The sale deed had to be executed on or before 23.2.2006. While the complainant was always ready and willing to go through with the transaction, it is stated that the petitioners were protracting it under one pretext or other. The complainant states that in January, 2006, when he met the first accused in the case, he was told that the other co-owners have not come to the station and some of them are outside the State and they have to be convinced about the need to sell the property. He had sought for extension of time. It is stated that a sum of Rs.1,00,000/- more was paid by the complainant and the time of execution of the deed was extended upto May, 2007. Even Crl.M.C.3226/2009. 3 though the first respondent was always ready and willing to pay the balance amount and get the property assigned, the petitioners herein under the pretext that the co-owners are not available, continued to evade the execution of the sale deed. The complaint says that the petitioners deliberately and with ulterior motive have not informed the other co- owners about the transaction, thereby they had deceived the complainant. It is averred in the complaint that the petitioners had undertaken the duty and liability of getting the consent of all other persons, who had right in the property. The complainant would further say that even at the time of entering into the agreement, they did know that they will not be able to assign the property and therefore they cheated him. 4. It appears that the complaint was sent for investigation under Section 156(3) to the Police. The crime was registered as Crime No. 357 of 2008 of Vadakkancherry Police Station for the offences punishable under Sections 406, 417 and 420 read with Section 34 IPC. It is this Crl.M.C.3226/2009. 4 proceeding that is challenged in this petition. It appears that after investigation final report was filed and cognizance was taken as C.C. 68 of 2009 by the JFCM, Vadakkancherry. 5. The contention raised by the learned counsel for the petitioners is that the issue involved in these proceedings is regarding the breach of contract. If that be so, criminal proceedings as initiated now cannot lie. At best, according to the learned counsel for the petitioners, the defacto complainant will have to resort to civil proceedings even assuming what he says is true. 6. It is necessary to notice that the petitioners have denied the transaction. Even assuming that what the defacto complainant says is true, it can only amount to a breach of contract. It is difficult to believe the complainant when he says that he believed that the petitioners would be able to get the consent of other co-owners and they will execute the sale deed. It is significant to note that there is not mention in the complaint as to how many co-owners are there in the property. It is difficult to believe that a person, Crl.M.C.3226/2009. 5 who is proposing to buy the property would not have taken the precaution of verifying the title deed. It is equally difficult to believe that when at the first instance the complainant approached the petitioners for execution of the sale deed and the petitioners told him that they were unable to contact the other co-owners, the complainant had again paid a sum of Rs.1,00,000/-. There is no evidence regarding the payment of Rs.1,00,000/-. 7. Even assuming that the agreement alleged is true, there is nothing to show that there was any intention on the part of the petitioners to deceive or defraud the complainant. All that they had stated was that they would get the consent of the co-owners and assign the property. The complainant ought to have noticed that there were other co-owners and it was necessary to obtain their consent before the property was assigned to him. May be that the petitioners were unable to get the consent of other co- owners. There is nothing to show that they had deliberately refrain from doing so. There is no averment in the complaint Crl.M.C.3226/2009. 6 that the complainant had not contacted any one of the other co-owners to find out whether the petitioners have taken any earnest effort to pursuant to the undertaking made by them in the agreement. 8. It will be useful at this juncture to refer to the two decisions reported in Anil Mahajan v. Bhor Industries Ltd. ((2005) 10 SCC 228) and Jose V.Y. v. State of Gujarat (2009(1) KLD 280(SC), where similar position was considered and the contention was upheld. 9. There is nothing to indicate that even assuming, as already stated, that the agreement to be true, there was any intention or motive on the part of the petitioners to cheat the complainant. Even if the petitioners had not taken any steps to get consent or they were unable to do so, still cannot attract the offence for which they have been charged. There is want of materials to show that there was any fraudulent intention at the time of entering into the agreement in question. Moreover, the very allegations in the complaint itself are not very convincing. It is true that Crl.M.C.3226/2009. 7 two persons have given evidence in the complaint. A reading of their evidence would indicate that their evidence is open to serious doubt. In these circumstances, it is felt that further continuance of the proceedings will be an abuse of process of court as the issue involved is purely a civil dispute, for which the remedy of the petitioner is to approach the civil court. Accordingly, this petition is allowed and the further proceedings in C.C. 68 of 2009 on the file of JFCM, Vadakkancherry is quashed and all further proceedings against the petitioners is dropped. P. BHAVADASAN, JUDGE sb.