IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.MC.No. 2181 of 2010(C) -------------------------------------- [CC.NO.721/2007 OF JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY] .................... PETITIONERS/ACCUSED: ------------------------------------ 1. MRS.SILO, W/O.SURENDRAN, AGED 39 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 2. K.K.SURENDRAN, S/O.KRISHNAN, AGED 48 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 3. MRS.LAILA, D/O.KRISHNAN, AGED 46 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 4. MRS.BHAVANI, W/O.KRISHNAN, AGED 66 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 5. MR.RAGHAVAN, S/O.AYYAPPAN, AGED 69 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 6. MR.PONNU, S/O.AYYAPPAN, AGED 65 YEARS, KAVANAKUDIYIL, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. 7. MR.SHAJI, S/O.RAMAN, AGED 43 YEARS, VADAMBADY MADOM, VADAYAMBADY KARA, AIKKARANAD SOUTH VILLAGE. BY ADVS. SRI.M.K.DILEEPAN, SRI.DEEPAK T.NEDUNGADAN, SMT.P.SUMITHRA. RESPONDENTS/STATE AND COMPLAINANT: ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. CRL.M.C. NO.2181/2010-C: 2. THE FEDERAL BANK LTD., KOLENCHERRY BRANCH, REPRESENTED BY ITS THEN BRANCH MANAGER, BABY JOHN, S/O.JOHN, AGED ABOUT 63 YEARS, KOLENCHERRY P.O., ERNAKULAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM, R2 BY ADVS. SRI.GEORGE KURUVILLA, SRI.P.V.BABY. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.2181/2010-C: ORDER ON CRL.M.A. NO.3535/2010 IN CRL.M.C. NO. 2181/2010-C DISMISSED 20/09/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2181 OF 2010 =========================== Dated this the 20th day of September,2010 ORDER Petitioners are the accused and second respondent the de facto complainant in C.C.721/2007 on the file of Judicial First Class Magistrate's Court, Kolencherry, taken cognizance for the offences under sections 406, 418, 420, and 423 read with section 149 of Indian Penal Code, on Annexure A2 final report in Crime 429/2005 registered, based on Annexure A1 complaint before Judicial First Class Magistrate's Court, Kolencherry and sent for investigation under section 156(3) of Code of Criminal Procedure. Annexure A1 complaint shows that case of the second respondent Bank was that first respondent mortgaged 7.165 cents of property including a house to the Bank as security for the loan obtained from the Crl.M.C.2181/2010 2 Bank and first petitioner had obtained the right as per sale deed dated 17.11.1999 and when there was default in repayment of loan, O.S.47/2002 was filed for realisation of the amount by sale of the mortgaged property. A decree was passed.In execution of the decree E.P.228/2004 was filed. In that E.P., a claim petition was filed by Shaila, sister of petitioners 2 and 3 the daughter of fourth petitioner and sale was adjourned. It was revealed that as per registered partition deed No.1856/1973, property was allotted to the share of Shaila and deceased Krishnan, her father, the husband of fourth petitioner. On the death of Krishnan, petitioners 2 to 4 sold the property to seventh petitioner as per sale deed 878/1999. Petitioners 5 and 6 had joined in execution of the sale deed. It is alleged that petitioners 5 and 6 were aware of the rights of Krishnan. Seventh petitioner as per sale deed dated 9.4.1999, transferred the property in favour of first petitioner who is the wife of second petitioner Crl.M.C.2181/2010 3 and then first petitioner mortgaged the same to the Bank and all the petitioners thereby committed the offences as alleged. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that first petitioner had purchased the property from the legal heirs of deceased Krishnan and she had no reason to suspect the genuineness of the transaction and in any case, the entire liability due to second respondent Bank was cleared and in such circumstances, it is not in the interest of justice, to continue the prosecution. 2. Second respondent appeared through a counsel and submitted that Bank has received the entire amount due under the decree is admitted but, that payment was not made by the Principal debtor but by the guarantors. 3. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 4. Prosecution case is that first petitioner Crl.M.C.2181/2010 4 mortgaged 7.165 cents of land in survey No.621/D inclusive of the house, for a loan availed from the bank and later bank instituted O.S.47/2002 for realisation of the amount and in execution of the decree E.P.228/2004 was filed. It is the case that in the execution petition, Shaila filed a claim petition claiming right in the property as per registered partition deed obtained by her and her father. It is alleged that though the property was assigned in favour of the seventh petitioner by petitioners 5 and 6, their right was not effected and first petitioner falsely obtained the sale deed from the seventh petitioner and therefore offences are committed. It is admitted case that subsequently entire debt due under the decree in O.S.47/2002 was paid, though it was not paid by the principal debtor but the guarantor. The claim of the bank has thus satisfied. The question is in such circumstance, whether prosecution against petitioners is to be continued. Though petitioners 2 to 7 are being prosecuted based on Crl.M.C.2181/2010 5 Section 149 of Indian Penal Code, it is clear from Annexure A1 complaint and Annexure A2 final report that the case of second respondent Bank is that first petitioner obtained a loan and mortgaged the property claiming that he obtained right as per sale deed No.1711/1999 and that sale deed was obtained from the seventh petitioner, who in turn obtained the right from petitioners 5 and 6. But the property belonged to Shaila and her father Krishnan who were not parties to the sale deed. It is therefore contended that in such circumstances, the offences are committed. 5. If the officials of the Bank had verified the title deeds, it would have shown that the property was the subject matter of partition deed No.1856/1973 and was allotted to the share of Krishnan and Shaila and under the sale deed obtained by the seventh petitioner from petitioners 2 to 4 including the widow of Krishnan, entire rights have not been transferred. But on the ground that first petitioner did not obtain Crl.M.C.2181/2010 6 entire right under the sale deed, it cannot be said that there was an intention to first petitioner or other petitioners to commit the offence under section 420 of Indian Penal Code or to misappropriate the amount as claimed by the prosecution. In such circumstances, when the entire amount due to the second respondent Bank has already been received, though not from the principal debtor but from the guarantors, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C.No.721/2007 on the file of Judicial First Class Magistrate's court, Kolencherry as against petitioners is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006