IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 Crl.Rev.Pet.No. 499 of 2009() -------------------------------- C.M.P. NO. 1485/2007 of JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM. REVN. PETITIONER/ PETITIONER: ------------------------------------- V.K.ELDHOSE,AGED 49, BUSINESS S/O.KURIAKOSE, COSMOS ROAD, COLOUR MECK, HOUSE NO.30/1088-B,KANIVAMPUZHA, KOCHI.(KEERAMPARA VILLAGE, NADUKANI KARA,VELAMKUZHI HOUSE,NADUKANI KARA, KEERAMPARA VILLAGE). BY ADV. MR. P.SOMACHUDAN NAIR RESPONDENTS/ RESPONDENTS:- ------------------------------------- 1. POULOSE, AGED 65 ,S/O.IYPE, KALLARACKAL HOUSE, CHEMBANKUZHI KARA, NERIAMANGALAM VILLAGE, (MANJALLOOR VILLAGE, KAPPU KARA, KALLARACKAL HOUSE). 2. ANNAKUTTY,W/O.POULOSE, RESIDING AT...DO. ....DO. 3. GEORGE, S/O.POULOSE, RESIDING AT ..DO.. ..DO... 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI – 31. ADV. MR. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. ========================= Crl. R.P. No. 499 of 2009 ========================= Dated this the 17th day of February, 2009. O R D E R The revision petitioner who is the complainant in a private complaint filed as C.M.P. No. 1485 of 2007 on the file of the Judicial First Class Magistrate, Kothamangalam alleging the commission of offences punishable under Sections 468 and 420 r/w Section 34 IPC, challenges the order dated 18.12.2008 dismissing the complaint under Section 203 Cr.P.C mainly for the reason that the dispute involved is of a civil nature and that if accused Nos. 1 and 2 had violated the undertaking given before the Munsiff's Court, the remedy of the complainant was to approach the same court for taking action against the accused. 2. The very same learned Magistrate had, on an earlier occasion, dismissed the very same complaint on 10.09.2007. In Crl. R.P. No. 974 of 2008 filed by the petitioner before this Court, this Court had on 19.06.2008 set aside the said order and had directed the Magistrate to conduct an enquiry under Crl.R.P. No. 499/2009 : 2 : Section 202 Cr.P.C and then proceed according to law. Thereafter, the Magistrate after conducting an enquiry under Section 202 Cr.P.C., has once again dismissed the complaint under Section 203 Cr.P.C. Hence this revision. 3. The main allegation in the complaint is as follows:- 14.5 cents of land situated in Keeranpara village was in the possession and ownership of the 2nd accused Annakutty. On 03.06.2006, the said Annakutty along with her husband Poulose (A1) entered into an agreement with the complainant for the sale of the said property for a consideration at the rate of Rs.10,000/- per cent. A sum of Rs.10,000/- was received by them as advance. The last date fixed for executing the conveyance deed was 30.11.2006. While so, the complainant obtained reliable information to the effect that A1 and A2 were attempting to transfer the property to A3, their son resulting in the complainant filing a civil suit as O.S. No. 238 of 2006 before the Munsiff's Court, Muvattupuzha. He also moved I.A. No. 162 of 2006 for interim injunction. In the counter filed to the said application, accused Nos. 1 and 2 had undertaken that they would not transfer the suit property to anybody else. In Crl.R.P. No. 499/2009 : 3 : the light of the said undertaking, the suit was withdrawn. However, contrary to the undertaking given before the civil court, A1 and A2 transferred the property to their son A3 as per registered document No. 3904 of 2006. The accused has thereby committed offences punishable under Sections 468 and 420 r/w Section 34 IPC. 4. The learned Magistrate has observed in the impugned order that the complainant in the sworn statement recorded under Section 200 Cr.P.C, has spoken in terms of the complaint. The Magistrate has also observed that PWs 2 to 4 have also deposed in terms of the testimony of the complainant examined as PW1. If so, this was not a case for dismissal of the complaint for the reason that the dispute involved in the case is of a civil nature. 5. Merely because a civil claim is maintainable, it does not mean that a criminal complaint on the very same cause of action cannot be maintained. [See Lalmuni Devi v. State of Bihar and others (2001 (2) SCC 17)] There are large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but Crl.R.P. No. 499/2009 : 4 : clearly co-extensive and essentially differ in their content and consequence. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. [See Alpic Finance Ltd. v. P. Sadasivan and another (2001 SCC (CRI.) 565)] In M. Krishnan v. Vijay Singh and another (2001 CRI. L.J 4705 (SC), the Apex Court held that if mere pendency of a civil suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing civil suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. It was further held that the complaint alleging commission of offences punishable under Sections 193, 196, 197, 406, 465, 468 and 471 IPC could not be quashed only because the accused had filed a civil suit with respect to the very same documents. 6. The action of the Magistrate in dismissing the complaint once again notwithstanding the order of this Court in Crl. R.P. No. 974 of 2008, cannot be supported by any Crl.R.P. No. 499/2009 : 5 : standards. The learned Magistrate appears to be obsessed with the idea that there cannot be any criminal prosecution in respect of a matter which involves a civil dispute. The impugned order dated 18.12.2008 is accordingly set aside and the Magistrate shall proceed to take cognizance of the offences which are disclosed in the complaint and the sworn statements. The Magistrate shall also consider whether an offence defined under Section 405 IPC is also revealed by the averments in the complaint, sworn statement of the complainant and the witnesses and the documents produced along with the complaint. The Magistrate can ill afford to remain insensitive to his inquisitorial obligation of eliciting from the complainant his legitimate grievance as has been emphasised in Mohammedkutty v. Mohammed – 2006 (3) KLT 447. This revision is disposed of as above. Dated this the 17th day of February, 2009. V. RAMKUMAR, JUDGE. rv Crl.R.P. No. 499/2009 : 6 : Crl.R.P. No. 499/2009 : 7 :