IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 Crl.MC.No. 1508 of 2005() ------------------------- CRIME NO.56/05 OF ERATTUPETTA POLICE STATION PETITIONER(S)/ACCUSED: ---------------------------- 1. JUSTIN THOMAS S/O. K.V.THOMAS, KIZHAKETHOTTATHIL POONJAR THEKKEKARA, POONJAR, KOTTAYAM. 2. SIVANKUTTI NAIR, PULLAPARA HOUSE, PANACHIPARA, POONJAR, NADUBHAGAM, POONJAR, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/STATE & COMPLAINANT: -------------------------------------------- 1. SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOY GEORGE S/O. GEORGE KIZHAKETHOTTATHIL POONJAR, THEKKEKARA, POONJAR, KOTTAYAM. PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R1 ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. & SRI.P.C.HARIDAS FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.6611/05 IN CRL.M.C.NO.1508/05 //DISMISSED// 31.3.09 SD/-M.C.HARI RANI, JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1508 OF 2005 ----------------------------------------------------- DATED THIS THE 31ST DAY OF MARCH, 2009 O R D E R The prayer in this petition is to quash the charge sheet in Crime No.56/05 of Erattupetta Police Station, Annexure-H and all further proceedings, as against the petitioners. Pending this petition, the learned Magistrate took cognizance of the case and is pending before the Court of J.F.C.M., Erattupetta as C.C.No. 276/05. Interim stay of further proceedings in that case was granted as per order of this Court dated 31.5.2005, which has been extended until further orders as per order dated 29.6.2005. 2. The facts of the case as stated in this petition are as follows:- The first petitioner is the owner of 1.20 Ares of land along with thatched building therein situated at Poonjar Panchayath. The 2nd petitioner is the tenant of that building. The 2nd respondent is the first cousin of the first petitioner and is a financier also. For the purpose of getting admission for B.Ed course, the first petitioner was in urgent need of money and to meet that need, the first petitioner executed a registered sale CRL.M.C.No.1508/05 -2- deed in respect of his property in favour of the 2nd respondent herein on the agreement that the sale will be reconveyed to the 1st petitioner on payment of the amount advanced by the 2nd respondent. It was on that understanding the sale deed was executed in favour of the 2nd respondent. True copy of that registered sale deed No.124/2003 dated 18-1-2003 of S.R.O.Poonjar is produced as Annexure-A. The total sale consideration of Rs.15,000/- as shown in Annexure-A sale deed was not paid in cash by the 2nd respondent to the first petitioner. But towards the sale consideration, a cheque bearing No.392731 drawn on Erattupetta Branch of South Malabar Grameen Bank was given to the first petitioner. The 2nd respondent did not give the said cheque to the first petitioner . The cheque number only was entered in Annexure-A sale deed. The 2nd respondent did not pay the amount of the cheque mentioned in Annexure-A sale deed in spite of repeated demands by the first petitioner. Subsequently on 22-2-2003, the first petitioner executed a registered cancellation deed as document No.4000/2003 of S.R.O.Poonjar, a copy of which is produced as Annexure-D. In spite of the execution of Annexure-A sale deed, possession of the property was not handed over to the 2nd respondent. The 2nd petitioner was continued as the tenant of the building situated CRL.M.C.No.1508/05 -3- in the property. After a lapse of two years, ie; on 7.2.2005, the 2nd respondent filed a complaint before the Court of J.F.C.M, Erattupetta, a copy of which is produced as Annexure-C alleging offences under Sections 406, 417 and 423 read with Section 34 of the Indian Penal Code. 3. Heard the learned counsel appearing for the petitioners and for the 2nd respondent. Heard the learned Public prosecutor also. 4. It is submitted by the learned counsel appearing for the petitioners that even if the entire averments made in Annexure-C complaint is believed as such, no offence is made out. The allegations therein is that after executing Annexure-A sale deed, the first petitioner has executed Annexure-B cancellation Deed, thereby the first petitioner has committed offence under sections 406, 417 and 423 read with Section 34 of IPC. The allegation against the second petitioner herein is that he paid the rent of the building situated in the property to the first petitioner even after execution and registration of Annexure A sale deed. The allegation in the complaint that, after the execution of Annexure-A sale deed, the 2nd petitioner herein has executed rent deed in favour of the first petitioner with the common intention to cause injury to the 2nd respondent , etc. are incorrect. CRL.M.C.No.1508/05 -4- Further, the dispute of the second respondent is only civil in nature and no criminal liability will arise against petitioners 1 and 2. 5. It is submitted by the learned counsel for the 2nd respondent that the matter in dispute as alleged in the complaint are disputed by both parties and the same could be decided in one way or the other only after adducing evidence in respect of the same before the trial court and this Court cannot exercise the inherent jurisdiction as envisaged under Section 482 of Cr.P.C. to decide the matter, which is in dispute. The first petitioner in this petition also filed another complaint against the second respondent in respect of which another petition, Crl.M.C.No.1828/05 is filed by the 2nd respondent herein before this Court with the prayer to quash the same. 6. Considering the facts in dispute and the circumstances of the case, I find that the disputed facts can be decided by the learned Magistrate after considering the evidence to be adduced on the prosecution side and also on the side of the defence, if any. It is the duty of the trial court and this Court cannot enter into any finding on those aspects. The power under Section 482 of Cr.P.C. can be exercised only sparingly and with caution. In these circumstances, I find there is no ground to quash Annexure-H charge sheet in Crime CRL.M.C.No.1508/05 -5- No.56/05 of Erattupetta Police Station, which is now pending before the lower Court as C.C.No.276/05 and this petition is liable to be dismissed. In the result, the Crl.M.C. is dismissed. Both parties can raise their contentions before the J.F.C.M.'s Court, Erattupetta. M.C.HARI RANI, JUDGE. dsn