IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 Crl.MC.No. 1007 of 2011() --------------------- CC.42/2011 of CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA ............... PETITIONERS / RESPONDENTS /1 TO 4 : --------------------------------------------------------- 1. ROSAMMA JOSEPH, D/O.LATE K.T.JOSEPH, PARAMBIL HOUSE, KANJIRAPALLY PO, KANJIRAPALLY. 2. GEETHAMMA JOSEPH, D/O.LATE K.T.JOSEPH, PARAMBIL HOUSE, KANJIRAPALLY PO, KANJIRAPALLY. 3. THOMAS JOSEPH, S/O.LATE K.T.JOSEPH, PARAMBIL HOUSE, KANJIRAPALLY PO, KANJIRAPALLY. 4. DR.THOMAS SEBASTIAN, S/O.LATE K.D.THOMAS, KARIPPA PARAMBIL (POOVANCHI VEEDU) KUNNUM BHAGAM, KANJIRAPPILLY, PONKUNNAM. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.M.V.JOSEPH (ALAPPUZHA) RESPONDENTS / COMPLAINANT & STATE : --------------------------------------------------------------- 1. SRI.JOHN DOMINIC, S/O.LATE DOMINIC, KARIPPAPARAMBIL HOUSE, (NOW RESIDING AT ANNIE ESTATE 900 ACRE, PUTHUMALA PO, MEPPADI,WAYANAD 673 577. 2. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MEPPADY POLICE STATION, MEPPADY PO, WYANAD DISTRICT 673 577,THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. R1 BY ADVS. SRI.AJITH MURALI SRI.S.KRISHNALAL R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1007 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - A : COPY OF THE POWER OF ATTORNEY DATED 30.9.1999 REGISTERED AS DOCUMENT NO. 213/1999 BEFORE THE KANJIRAPPILLY SUB REGISTRY. ANNEXURE - B : COPY OF THE POWER OF ATTORNEY 3.3.2000 REGISTERED AS DOCUMENT 52/2000 BEFORE THE KANJIRAPPILLY SUB REGISTRY. ANNEXURE - C : COPY OF THE DOCUMENT DATED 9.1.2001 EXECUTED BY THE 1ST RESPONDENT IN HIS CAPACITY AS POWER OF ATTORNEY HOLDER. ANNEXURE - D : COPY OF CANCELLATION DEED DATED 5.9.08 VIDE DOCUMENT NO. 157/IV/2008. ANNEXURE - E : COPY OF CANCELLATION DEED DATED 5.9.08 VIDE DOCUMENT NO. 155/IV/08. ANNEXURE - F : COPY OF CANCELLATION DEED DATED 5.9.08 VIDE DOCUMENT NO. 156/IV/08. ANNEXURE - G : COPY OF POWER OF ATTORNEY DATED 5.9.08 VIDE DOCUMENT NO. 158/IV/08. ANNEXURE - H : COPY OF COMPLAINT FILED BY THE 1ST RESPONDENT AGAINST PETITIONERS BEFORE THE CJM, KALPATTA DATED 21.11.08. ANNEXURE - I : COPY OF JUDGMENT DATED 29.10.09 IN O.S. NO. 77/03 OF THE SUB COURT, SULTHAN BATHERY. ANNEXURE - J : COPY OF DECREE DATED 29.10.09 IN O.S. NO. 77/03 OF THE SUB COURT, SULTHAN BATHERY. ANNEXURE - K : COPY OF NOTICE OF INTIMATION TO THE 1ST RESPONDENT RECEIVED ON 11.5.09 ISSUED BY THE 2ND RESPONDENT. ANNEXURE - L : CERTIFIED COPY OF CMP NO. 1064/09 IN C.C. /09 FILED BY THE 1ST RESPONDENT BEFORE THE CJM, KALPATTA DATED 12.5.09. (Contd...) Crl.MC.No. 1007 of 2011() ANNEXURE - M : CERTIFIED COPY OF ORDER DATED 5.2.2011 IN CMP 1064/09 OF THE CJM COURT, KALPATTA. ANNEXURE - N COPY OF WITNESS OF THE JOHN DOMINIC BEFORE THE CJM COURT, KALPATTA IN CMP NO. 1064/09. ANNEXURE - O COPY OF WITNESS OF THE JOSEPH SAMUEL BEOFRE THE CJM COURT, KALPATTA IN CMP NO. 1064/09. ANNEXURE - P COPY OF WITNESS OF THE SHAJI THOMAS SAMUEL BEFORE THE CJM COURT, KALPATTA IN CMP NO. 1064/09. ANNEXURE - Q COPY OF WITNESS OF THE HAMSA BEFORE THE CJM COURT, KALPATTA IN CMP NO. 1064/09. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 1007 of 2011 ------------------------------------------ Dated this the 6th day of December, 2011 ORDER Petitioners are the accused in CC.42/11 of CJM Court, Kalpetta. A complaint was given by the first respondent alleging offence under Section 420 r/w 34 IPC which was forwarded to the police for investigation under Section 156(3) Cr.P.C. That complaint was referred by the police as 'false' as evidenced by Annexure – K. On receipt of the refer notice, Annexure – L complaint was filed. In that case sworn statements of the complainant and witnesses were recorded. The learned Magistrate there upon took cognizance of the case under Section 420 r/w 34 IPC against the petitioner. That order taking cognizance is challenged in this petition. 2. The learned counsel appearing for the petitioner would submit that the learned Magistrate overlooked the fact that the police has referred the case twice. One stating that, it is a dispute of civil nature and again stating that it is 'false'. The learned counsel for the complainant would Crl.M.C.No. 1007 of 2011 -: 2 :- submit that the witnesses who have now given statements were not questioned by the police. 3. The whole case is founded on the title to the immovable property. The complainant is stated to be the power of attorney holder of A1 and A2. They were having large extent of property. Based on the power of attorney, so many documents were executed by the complainant. There was some dispute with regard to the same. Therefore, subsequently accused Nos. 1 and 2 executed a document cancelling the power of attorney. The cancellation of that power of attorney is the subject matter of the complaint. According to the complainant, the accused were stated to have been committed cheating. 4. The learned counsel for the petitioners submits that as accused Nos. 1 and 2 are the owners of the property and they are the persons who had executed the power of attorney and hence they have every right to cancel the power of attorney. Cancellation of power of attorney does not give rise to any cause of action to file criminal complaint against the owner of the property who had once Crl.M.C.No. 1007 of 2011 -: 3 :- executed the power of attorney in favour of the complainant. The learned counsel for the complainant submits that though the title deeds stood in the name of accused Nos. 1 and 2, the property was in the possession of the complainant and that he had also paid the consideration amount to the accused. But so long as the title is vested in accused Nos. 1 and 2 and the same has not been set aside, it cannot be said that accused Nos. 1 and 2 have no title to the property or that the power attorney executed is not true or that subsequent cancellation of the same is invalid. In such circumstances, I find there is no legal foundation for sustaining the charge against the petitioners. If at all, it is only a dispute of civil nature. As such, I find that the accused cannot be asked to suffer the ignominy of a protracted trial. Hence this petition is allowed. Further proceedings in CC.42/11 of CJM Court, Kalpetta is quashed. N.K. BALAKRISHNAN, JUDGE smvd