IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 Crl.MC.No. 3697 of 2010() ------------------------ CC.373/2010 OF JUDL. FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY CRIME NO. 304/2007 OF KODUVALLY POLICE STATION .................. PETITIONER / 3RD ACCUSED : ----------------------------------------- K.GANESAN,S/O.KANIYARAKKAL KANARAN, RESIDING AT NEDUNGATTUR DESOM, PO KOTTOOLI, KOZHIKODE. BY ADVS. SRI.V.V.SURENDRAN SMT.RESMI NANDANAN RESPONDENTS / DEFACTO COMPLAINANT / COMPLAINAT AND STATE : ------------------------------------------------------------------------------------------------------ 1. BANK OF BARODA,REPRESENTED BY BRANCH MANAGER, MAVOOR ROAD BRANCH,KOZHIKODE POST OFFICE, KOZHIKODE-1. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE SUB INSPECTOR OF POLICE, KODUVALLY POLICE STATION, KOZHIKODE. R1 BY ADV. SRI.DEVAN RAMACHANDRAN R2 & R3 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3697 OF 2010 --------------------------------------------- Dated 18th October, 2010 O R D E R Petitioner, the third accused in C.C.373/2010 on the file of Judicial First Class Magistrate's Court-I, Thamarassery, taken cognizance for the ofences under Sections 468, 471 and 420 read with Section 34 of Indian Penal Code, filed this petition under 482 of Code of Criminal Procedure to quash the proceedings against him. Crime No.324/2007 was registered based on a complaint filed by the second respondent, Senior Branch Manager of Bank of Baroda, Kozhikode against three accused and Sub Registrar of Koduvally Sub Registrar's Office. Petitioner purchased 37 cents in R.S.14/4 of Kizhakoth village Crmc 3697/10 2 from the first accused, as per registered sale deed No.35/2006. Second accused approached the Bank for a loan of Rs.15 Lakh to purchase 28 cents of land in R.S.No.14/4 of Kizhakoth village from the first accused who obtained it under document No.2474/1960 by an agreement for sale. On satisfaction, the Bank sanctioned a loan and second accused purchased 28 cents of the property from the first accused as per document No.1553/1/2006. It was mortgaged to the Bank. Later, it came to the notice of the Bank that before execution of the registered sale deed No.1553/2006 dated 1.6.2006, the very same property was sold by the first accused to the petitioner on 3/1/2006, as per registered sale deed No.35/2006 of S.R.O.Koduvally. Contending that the encumbrance certificate produced before the Bank issued by fourth accused to the second accused does not show the Crmc 3697/10 3 transfer of the property as per document No.35/2006 in favour of petitioner, the third accused and alleging that it is with malafide intention and collusion accused 1 to 3 entered into the sale deeds and fourth accused joined with them by issuing a encumbrance certificate without disclosing the sale in favour of the petitioner, complaint was filed. After completing the investigation, Annexure-A3 final report was submitted against accused 1 to 3 alone, which was taken cognizance by the learned Magistrate. Case of the petitioner is that even as per the final report, petitioner obtained 37 cents of the property on 3/1/2006 by registered sale deed No.35/2006 of S.R.O Koduvally and first accused who sold the property to the petitioner, later executed another sale deed in favour of the second accused and encumbrance certificate Crmc 3697/10 4 produced by the second accused before the Bank does not show the transfer in favour of the petitioner and petitioner was alleged to have committed the offences. It is contended that as petitioner has nothing to do with the loan applied for by the second accused or granted by the Bank in his favour and there is no material to connect the petitioner with the offences, and hence continuation of the proceedings against the petitioner is only an abuse of process of the Court. 2. Though notice was served on the second respondent Bank, they did not appear. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Admitted facts establish that 37 cents of land in R.S.No.14/4 of Kizhakoth Village originally belonged to the first Crmc 3697/10 5 accused as per registered document No.2474/1960. By registered sale deed No.35/2006, dated 3/1/2006, first accused sold the property to the petitioner. Thereafter first accused entered into an agreement for sale of 27 cents of the very same property in favour of the second accused. Second accused approached the second respondent Bank for a loan to purchase that property based on the agreement for sale. After perusing the agreement and records, including the encumbrance certificate second respondent sanctioned the loan. First accused thereafter executed registered sale deed No.1553/1/2006 on 26/4/2006 in favour of the second accused. That sale was four months subsequent to the sale in favour of the petitioner. Second accused though produced the encumbrance certificate obtained from the Sub Registrar's Office, it does not Crmc 3697/10 6 disclose the transfer of the property in favour of the petitioner, under document No.35/2006. Evidently, it is without knowledge of the transfer in favour of the petitioner, the Bank sanctioned the loan. But the question is whether petitioner could be prosecuted for the acts committed by accused 1 and 2. 5. Learned Public Prosecutor made available entire case diary. On going through the case diary, I find no material to show that petitioner has anything to do with either the application for loan submitted by the second accused before the Bank or the agreement for sale or the sale deed executed by the first accused in favour of the second accused or the deeds executed by the second accused in favour of the Bank or the disbursing of the loan in favour of the second accused or even utilisation of the amount obtained by the Crmc 3697/10 7 second accused from the Bank. When first accused purchased the property earlier to the transaction entered into by the first accused in favour of the second accused, petitioner cannot be prosecuted either for suppression of the sale in favour of the third accused or for not showing the sale deed in the encumbrance certificate produced by the second accused before the Bank. 6. As rightly pointed out by the learned counsel appearing for the petitioner, though original complaint was preferred against the Sub Registrar also on the allegation that Sub Registrar in furtherance of the common intention with accused 1 to 3 suppressed the existence of registered sale deed No.35/2006 in the encumbrance certificate issued to the second accused for procuring the loan, after investigation, the Sub Registrar was absolved Crmc 3697/10 8 no charge was submitted against Sub Registrar Officer. Therefore, as far as the petitioner is concerned, he had purchased 37 cents of the property earlier to the agreement for sale entered into by the second accused with first accused and much prior to the registered sale deed executed by the first accused in favour of the second accused. In such circumstances, prosecution of the third accused, who purchased the property earlier to the sale in favour of the second accused, in the absence of any material to show that there was no conspiracy by the petitioner with other accused or petitioner had played any part in the loan obtained by the second accused, continuation of the proceedings against the petitioner is only an abuse of process of the Court. In such circumstances, it is not in the interest of justice to continue the prosecution against Crmc 3697/10 9 the petitioner. Petition is allowed. Cognizance taken as against petitioner, the third accused in C.C.373/2010 on the file of Judicial First Class Magistrate's Court-I, Thamarassery is quashed. It is made clear that prosecution against other accused can continue. M.SASIDHARAN NAMBIAR, JUDGE. uj.