IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.MC.No. 637 of 2009() ------------------------ OS.58/2001 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... (FIR NO.450/08 OF MANANTHAVADI POLICE STATION) PETITIONER(S): -------------------------- 1. PALANILKUNNATHIL KAIPATTUR AMMINI, W/O.P.S.THAMPI, 55 YEARS, RTD.LECTURER, AMEYA, GOLDEN ENCLAVE, P.O.THOTTADA, KANNUR DISTRICT. 2. P.V.SAJI, S/O.VIMALA, 33 YEARS, ELLATHUTHAZHE KRISHNA VIHAR, KUTTIMAKKOOL, THIRUVANGAD, THALASSERY. 3. P.V.JALAJA, D/O.VIMALA, 34 YEARS, SATHRATHIL DEVADATHAM HOUSE, KODIYERI, THALASSERY. 4. VIMALA PRASOBITHAN, W/O.PRASOBITHAN, 55 YEARS, RESIDING AT KRISHNAVIHAR, THIRUVANGAD, THALASSERY. BY ADVS. MR.ASOK M.CHERIAN, MR.K.R.VINOD. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M.A.ABDUL AZEEZ, S/O.LAVAKUTTY HAJI, SALIM MANZIL, KODIYATHUR P.O., MUKKAM,KOZHIKODE. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI R2 BY ADV.MR.K.JAJU BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.637 of 2009 -------------------------- ORDER Petitioners are the accused in Crime No.450/2008 of Mananthavady Police Station. Petitioners entered into an agreement for sale with second respondent, where under, petitioners agreed to sell the property shown in Annexure-A1 agreement dated 19.7.2000 to the second respondent for a total consideration of Rs.4,12,850/- and second respondent paid an amount of Rs.2,95,000/- as advance and petitioners agreed to execute the sale deed on or before 30.1.2001. When petitioners did not execute the sale deed, second respondent instituted O.S.No.58/2001 before Sub Court, Sulthan Bathery. As is clear from Annexure-A2, copy of the plaint, the relief sought for in the plaint is only for return of the advance amount with interest and not for specific performance of the agreement for sale. That suit was instituted on 30.6.2001. Thereafter, Annexure-A3 complaint was filed before Judicial First Class Magistrate's Court-II, Mananthavady alleging that petitioners committed an offence under Section 420 read CRMC 637/09 2 with Section 34 of Indian Penal Code. Learned Magistrate sent it for investigation under Section 156 (3) of Code of Criminal Procedure, based on which, Annexure-A4 FIR was registered. This petition is filed under Section 482 of Code of Criminal procedure to quash Annexure-A4 FIR. 2. Learned counsel appearing for the petitioners and second respondent were heard. 3. Learned counsel appearing for the petitioners pointed out that there are allegations in Annexure-A3 complaint that with the intention to cheat, petitioners sold the property, agreed to be sold to the second respondent, to a third party and petitioners have no property left with them to enable the second respondent to realise the advance amount paid and petitioners had an intention to cheat the second respondent at the very inception and therefore, they committed the offences. Learned counsel argued that when, in June 2001 itself, second respondent instituted a suit for return of the advance amount, second respondent is not entitled to contend that, by sale of the property, petitioners committed cheating. It was also argued that if the case of the second respondent is that petitioners did CRMC 637/09 3 not repay the amount due under Annexure-A1 agreement, it is only a civil liability and no offence under Section 420 of Indian Penal Code is attracted. 4. Learned counsel appearing for the second respondent pointed out that there are allegations in Annexure-A3 complaint that when petitioners entered into an agreement for sale, they had a dishonest intention to cheat the second respondent and in furtherance of their common intention, after executing the agreement, they sold the property to a third party and therefore, ingredients of an offence under Section 420 of Indian Penal Code is made out and hence, Annexure-A4 FIR cannot be quashed. 5. Annexure-A1 agreement for sale establishes that after receipt of Rs.2,95,000/- as advance, petitioners have agreed to sell the property shown therein and execute a sale deed on or before 30.1.2001. Annexure- A2 complaint establishes that within seven months from the expiry of the period provided under Annexure-A1 agreement, second respondent instituted a suit against the petitioners and in that suit no decree for specific performance of the agreement was sought for and instead, the only relief sought for was to return the CRMC 637/09 4 advance amount with interest. In such circumstances, second respondent cannot be heard to contend that petitioners are not entitled to sell the property. The question whether second respondent is entitled to a charge over the property so sold is not a matter to be decided in this petition. In any case, by selling the property, agreed to be sold under Annexure-A1 agreement, when second respondent himself had given up the right to get a sale deed executed, an offence under Section 420 of Indian Penal Code is not attracted. If the case of the second respondent is that petitioners did not return the amount provided under Annexure-A1, the remedy of the second respondent is only to institute a civil suit, which has already been done by the second respondent. In such circumstances, continuation of the criminal proceedings is only an abuse of process of the court. Petition is allowed. Annexure-A3 complaint and Annexure-A4 FIR in Crime No.450/2008 of Mananthavady Police Station as against the petitioners is quashed. 23rd July, 2009 (M.Sasidharan Nambiar, Judge) tkv