IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 CRL.A.No. 180 of 2002() ----------------------- CC.119/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... APPELLANT(S): COMPLAINANT. ------------------------------------------------ ASHRAF ALI, S/O. MOHAMMED, KALATHIL, NADUVILAPARAMBIL, KIZHAKKEVELIYATHUNADU, ALUVA. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): ACCUSED & STATE: --------------------------------------------------------- 1. ABDUL VAHID, S/O. V.M.ABDUL RAHMAN, VALIYARA VEEDU, HOUSE NO.1/258, RAMESWARAM, KIZHEKKEMURI, NAFARI, STREET,COCHIN-2. 2. VAHIDA, VALIYARA VEEDU, HOUSE NO.1/258, RAMESWARAM, KIZHAKKEMURIYIL, NAFARI STREET, COCHIN-2. 3. V.P.PRASAD CHANDRAN, OFFICE STAFF, BINNY LTD., COCHIN-3, WILLINGTON ISLAND. 4. K.A.VARKEY, NERMELIPARAMBIL, KUZHUPUNNA VILLAGE, CHERTHALA. 5. I.T.N.RAMACHANDRAN, S/O. NARAYANAN NAIR, THADATHIL, CHERALADU KARA, THRIKARIYOOR. 6. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY ADVS. SRI.P.VIJAYA BHANU, SRI.P.M.RAFIQ. R6 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ======================== Crl.Appeal.No.180 OF 2002 ==================== Dated this the 23rd day of July, 2010. JUDGMENT The complainant in C.C.No.119 of 1995 on the file of Judicial First Class Magistrate Court-I, Aluva, filed this appeal challenging the order of acquittal of respondents 1 to 5, the accused in the complaint. 2. The case of the appellant in the complaint was that on 15.2.1993 the third respondent came and informed that 26.700 cents of property belongs to first respondent and it is being sold as he is need of money. Appellant in turn enquired with respondents 1 and 2 whether the information furnished by the third respondent is correct. When they sated that it is correct and they intend to sell the property, situated in Sy.No.120 /1B of Vazhakkala village, as appellant was made to believe that first respondent has right and title to the property and no litigation is pending, appellant agreed to purchase the property and respondents 1 and 2 agreed sell them for Rs.5,70,300/- It was also agreed that Crl.Appeal.No.180 OF 2002 2 within 100 days, a registered sale deed could be executed. Appellant paid Rs.3,46,000/- towards the sale consideration as advance and it was received by respondents 1 and 2. Ext.P1 agreement was entered into. Later first respondent came to the house of the appellant and received Rs.25,000/- more. When the period fixed for execution of sale deed expired in April 1993, and first respondent did not execute the sale deed appellant approached him. He was told that in respect of that property, a suit is pending before Sub Court, Ernakulam as O.S.No.220 of 1993 and first respondent has no property in the survey number agreed to be sold. It is alleged that respondents induced appellant to purchase the property, suppressing real facts. In May 20.5.1993 appellant approached first respondent and then it was submitted that the matter would be settled within one month and sale deed would be executed and if the Civil suit was not settled by that time, a sale deed could be executed in respect of the remaining undisputed land. It is contended that though appellant was ready to purchase the properties, respondents did not execute the sale deed and on enquiry it Crl.Appeal.No.180 OF 2002 3 was known that property was sold for more consideration by the first respondent in collusion with the other respondents. It is contended that the respondents thereby committed offences under Section 418, 420 and 423 read with Section 34 of Indian Penal Code. The learned Magistrate took cognizance of the offences and issued summons to respondents 1 to 5. They pleaded not guilty when the charge was framed. Appellant was examined as PW1 and three witnesses were examined as PWs.2 to 4. Ext.P1 to P7 were marked on the side of the appellant. First respondent was examined as DW2 and a witness to Ext.P1 agreement was examined as DW1. Ext.D1 to D3 were marked on their side. MO1 series of photographs and the disputed documents and the admitted signatures obtained by the expert with the negatives were identified as MO1. 3. The learned Magistrate on the evidence found that the appellant failed to establish the ingredients of the offences. It was found that the case of the appellant is that there was an agreement for sale of the property belonging to the first respondent and appellant had originally lodged Crl.Appeal.No.180 OF 2002 4 the complaint before the police, only against respondents 1 to 3 and only after a refer report was submitted by police, respondents 4 and 5 where implicated in the private complaint on the allegation that first respondent sold the property to them and thereby they also committed the offence. The learned Magistrate found that essentially the dispute is a civil dispute and normally remedy is to seek a decree for specific performance of agreement for sale or for return of the advance amount and appellant did not instituted any suit. It was also found that as per the case of the appellant, a sale deed was not executed for the reason that a civil suit is pending and first respondent had no right in the property and still it is the case of the appellant that the property was subsequently sold to respondents 4 and 5 and therefore, the contention that first respondent has no saleable right cannot be true. It was also found that appellant has not produced any document to prove the existence of a civil suit in respect of the property and all these circumstances justify the contention of the defence that failure to execute the sale deed was not the result of Crl.Appeal.No.180 OF 2002 5 any cheating and instead appellant was not prepared to purchase the property. Accepting the defence case, respondents were acquitted. 4. The argument of the learned counsel is that when Ext.P4 report on examination of Ext.D1 document which was executed allegedly on receipt of the advance amount paid under Ext.P1, the learned Magistrate should have informed that the defence case is not correct. It was also argued that the learned Magistrate should have found that first respondent in collusion with the other respondents induced the appellant to enter into an agreement of sale of the property and their intention was not to sell the property but to misappropriate the advance amount and received the advance amount from the appellant and misappropriated it and thereby committed the offences. 5. Learned counsel appearing for respondents 1 and 2 submitted that the very fact that appellant did not institute any suit either for specific performance of Ext.P1 agreement for sale or for return of the advance amount, establishes that the contentions of the appellant is not true. It is also Crl.Appeal.No.180 OF 2002 6 argued that the very fact that under Ext.D1, the property was sold by the first respondent, establishes that he has saleable interest in the property and the contentions of the appellant that sale deed was not executed on the representation that civil suit is pending in respect of part of the property cannot be true and on a proper appreciation the learned Magistrate rightly acquitted the appellant and there is no reason to interfere with the order of acquittal. 6. Under Ext.P1 agreement for sale, appellant had agreed to purchase 26.700 cents of land in Sy.No.120/IB of Vazhakkala village for a total consideration of Rs.5,70,300/-. That agreement was executed on 26.2.1993. Appellant had paid Rs.3,46,000/- as advance amount towards part of the sale consideration. On receipt of the amount, first respondent had agreed to execute the sale deed, on receipt of the balance consideration within 100 days from the date of execution of the agreement. The contention of the appellant is that first respondent had no intention to sell the property at that time, when the agreement was entered into and subsequently, sale deed was executed in favour of Crl.Appeal.No.180 OF 2002 7 respondents 4 and 5. Appellant has no case when he originally filed a complaint before the police alleging that respondents 1 to 3 cheated him, respondents 4 and 5 have anything to do with the agreement for sale. Therefore, even if the case as against respondents 1 to 3 to be accepted, the case as against respondents 4 and 5 will not lie. They are only the subsequent purchasers of the property. For the reason that they purchased the property from the vendor, who entered into agreement for sale with third party, it cannot be said that subsequent purchasers have committed any cheating or any of the offence alleged as against them. Therefore, the order of acquittal as against respondents 4 and 5 is perfectly legal. 7. In order to sustain the case as against respondents 1 to 3, there should be evidence to prove that they induced appellant to enter into an agreement for sale, when they have no intention to execute the sale deed and intention was to misappropriate the amount was received from the appellant when Ext.P1 agreement was entered into. Appellant has a case that though a time limit of 100 days Crl.Appeal.No.180 OF 2002 8 was fixed in Ext.P1, first respondent did not execute the sale deed on the representation that a civil suit is pending before Sub Court, Ernakulam in respect of a portion of property and then appellant realised that first respondent has no right over the property agreed to be sold under Ext.A1. At the same time, it is alleged that appellant approached the first respondent and then he agreed that he would settle the dispute and execute a sale deed, in respect of that property and even if the civil suit is not settled, he will execute a sale deed in respect of balance extent. If according to appellant, he realised that the first respondent has no right over the property, to be sold under Ext.A1, it cannot be believed that appellant would agree to purchase the property either in full or a portion, after settlement of disputes. As rightly pointed out by the learned counsel appearing for respondents 1 and 2, no material was produced to establish the existence of a civil suit in respect of the property agreed to be sold under Ext.P1. Ext.D3 sale deed executed by first respondent in favour of respondents 4 and 5 establishes that first respondent had a saleable right Crl.Appeal.No.180 OF 2002 9 in the property. Respondents 4 and 5 paid the consideration and purchased the property. The very allegation in the complaint itself is that the property was sold by first respondent to respondents 4 and 5 for more amount than what is provided under Ext.P1. Therefore, the contention of the appellant that sale deed was not executed because of lack of right in the property for the first respondent or because of pendency of civil suit cannot be believed. 8. It is in this background, the case of the appellant that first respondent in furtherance of their common intention with the other accused cheated him by not executing any sale deed and instead executed a sale deed in favouor of respondents 4 and 5. As provided under Ext.P1, appellant has paid Rs.3,46,000/- to the first respondent. It is also admitted case that Rs.25,000/- was advanced subsequently towards the sale consideration. In spite of the fact that Rs.3,71,000/- was allegedly paid by the appellant for purchase of the property covered under Ext.P1, a suit either for specific performance of the agreement for sale or for return of the advance amount paid under Ext.P1, was not Crl.Appeal.No.180 OF 2002 10 instituted. It cannot be believed that if appellant was willing to get the sale deed executed and the first respondent was not prepared to perform his part of the agreement under Ext.P1, appellant will not institute a suit for specific performance, if he had intention to purchase the property as agreed. Even if, it is taken that appellant did not want specific performance of the agreement for sale and, therefore, a suit for that purpose such was not instituted, he would have definitely instituted a suit for return of advance amount. As it cannot be believed that appellant would forgo an amount of Rs.3,71,000/- allegedly received from first respondent, the defence case was that appellant was prepared to purchase the property and later the advance amount received was paid back and was received by appellant appears to be correct. Even if it is taken that Ext.D1 agreement, based on the evidence of PW4 and Ext.P4 report cannot be accepted, the inaction on the part of appellant in not instituting a suit for specific performance of the agreement for sale or suit for return of the amount, when the period of limitation has already expired, can only Crl.Appeal.No.180 OF 2002 11 be for the reasons set up. I find no reason to interfere with the order of acquittal passed by learned Magistrate as on a reasonable appreciation of the evidence, the order of acquittal can only be confirmed. There is no merit in this appeal. The appeal is accordingly dismissed. M.SASIDHARAN NAMBIAR, JUDGE. mns