IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 Crl.MC.No. 4337 of 2008() ------------------------- CC.1916/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONER(S): ------------------------- 1. DR.ABDUL MAJEED, 34/711, 'PALAK', VELIYANNUR P.O., THRISSUR. 2. DR. SHAMEERA ABDUL MAJEED, DO....DO............... 3. ARUN MAJEED, DO....DO.... BY ADVS. MR.VIVEK VARGHESE P.J., MR.P.J.VINOD JOSEPH. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, THRISSUR WEST POLICE STATION, REP. BY PUBLIC RPSOECUTOR, HIGH COURT OF KERALA. 2. SHAMSUDEEN, S/O. ISMAIL, PANICKASSERI KADAVI HOUSE, KATTOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. R1 BY PUBLIC PROSECUTOR MR. SIVAKUMAR R2 BY ADV. MR.T.MADHU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.4337 OF 2008 =========================== Dated this the 23rd day of September,2009 ORDER Petitioners are the accused in C.C.1916/2007 on the file of Judicial First Class Magistrate Court-II, Thrissur and second respondent is the de facto complainant. Second respondent filed Annexure I complaint before Chief Judicial Magistrate, Thrissur. It was sent for investigation under section 156(3) of the Code of Criminal Procedure based on which Crime 234/2007 of Thrissur West Police Station was registered for the offences under sections 403,406,409 and 420 read with section 34 of Indian Penal Code against the first accused his wife the second accused and their son third accused. After investigation Sub Inspector of Police submitted Annexure II final report which was taken cognizance for the offences under sections 403, 406, 409 and 420 read with section 34 of Indian Penal Code. Though petitioners filed Crl.M.P.11221/2008 for discharge under section 239 of Code of Criminal Procedure, under Annexure VIII order the petition was dismissed holding that petitioners relied on records Crl.M.C.4337/2008 2 in the civil case which cannot be looked into at the time of hearing the question of discharge under section 239 of Code of Criminal Procedure. This petition is thereafter filed under section 482 of Code of Criminal Procedure to quash the cognizance taken and the proceedings pending before the learned Magistrate. 2. Learned counsel appearing for the petitioners and learned counsel appearing for the second respondent were heard. 3. The allegations in Annexure I complaint, which was accepted after investigation as seen from Annexure II final report, is that on 10.8.2005 second respondent along with his family had gone to the house of the petitioners and at that time, first petitioner represented to the second respondent that there is scope for real estate business as there is demand for land and a property near Kalyan Mobike on the side of Thrissur-Kunnamkulam road is available for sale and if second respondent is prepared, it could be purchased jointly by the second respondent and the first petitioner and if agreed, the property could be purchased and sold for higher value and it could be done even before executing a sale deed in their favour and in that case the profit could be shared equally by the first petitioner and the second respondent and if second respondent is prepared and invest the money, first Crl.M.C.4337/2008 3 petitioner will act as his agent and would transact the business and if the property could not be sold for profit, sale deed could be obtained jointly in the name of the first petitioner and the second respondent and on the bona fide belief that first petitioner will not cheat him and is making the representation honestly, second respondent agreed for the proposal and an oral agreement was entered into. It is further contended that as induced by the first petitioner and believing that first petitioner would act as agreed and a sale deed will be jointly obtained in the name of first petitioner and second respondent, for executing an agreement for sale of 52 cents of land in survey No.102/1 and 103/4 of Ayyanthole Village, second respondent paid Rs.5,00,000/- to the first petitioner as per cheque No.78408 from his account in Federal Bank on 5.8.2005. The said amount was paid at the time of executing the agreement for sale and as agreed first petitioner paid advance to Sathar and Anvar s/o.Hydru Haji, through the power of attorney Hydru Haji and an agreement was entered into by them in favour of the first petitioner. It is also contended that subsequently towards the sale consideration second respondent transferred Rs.15 lakhs on 13.10.2005 Rs.15 lakhs on 24.10.2005 and Rs.20 lakhs on 16.11.2005 in the presence of Shaji, s/o.Velayudhan and as the second respondent was outside India it was the first petitioner Crl.M.C.4337/2008 4 who has been in possession of the property. According to the complaint, in November, 2005 when second respondent had been to India first petitioner called him to his house and showed him a draft sale deed to be executed in the joint name of the first petitioner and the second respondent, prepared by document writer Haridas and obtained Rs.5 lakhs and thereafter he had gone to foreign country. It is further contended that in January,2006 when second respondent came to India he met the first petitioner and when he asked for a copy of the registered sale deed, it was represented that the copy was not received and it would be obtained within one week and even after two weeks the copy was not given and when first petitioner was questioned he disclosed that out of the amount received, Rs.80 lakhs was remitted to the account of the second respondent and the balance payable would be disclosed after perusing the accounts. Getting suspicious, on verification second respondent found out that registered sale deeds 341, 342 and 343 of 2006 of Ayyanthole Sub Registry office were obtained by the first petitioner in his name as well as in the name of his wife and son the other petitioners and the consideration shown therein was less than the actual consideration paid and petitioners have cheated him. It is contended that petitioners thereby committed the offences as alleged. Crl.M.C.4337/2008 5 4. Learned counsel appearing for the petitioners pointed out that if the allegations in the complaint is true, the alleged inducement as well as the oral agreement entered into by second respondent and first petitioner was only on 10.8.2005, in which case there cannot be a payment of part of the consideration on 5.8.2005 and that itself establish that the complaint is an abuse of process of the court. It is further pointed out that Annexure II statement of the second respondent recorded under section 161 of Code of Criminal Procedure also shows that the alleged inducement and the representation that the property could be purchased jointly in the name of the first petitioner and the second respondent was allegedly made on 10.8.2005 and if that be so, the very case set up in the complaint and accepted by the Investigating Officer by payment of rupees fifty lakhs on 5.8.2005 cannot be correct. Learned counsel also pointed out that as per 161 statement of the second respondent recorded under section 161 of Code of Criminal Procedure second respondent was aware from whom the properties were to be purchased and who were all the brokers and through whom the sale deed is to be prepared and fact that the registered sale deeds were obtained not only in the name of the first petitioner but in the name of petitioners 2 and 3 was also known, on the date of the registration of the sale deed. It is further Crl.M.C.4337/2008 6 argued that if the case set up in the said statement is true, the second respondent when questioned the first petitioner as to why the sale deed was executed in the name of his wife and son, first petitioner promised to pay the profit and hence he did not take any steps and statement of the Manager of the Federal Bank, who is the sixth prosecution witness shows that Rs.80 and odd lakhs was remitted in the account of the second respondent in 2005 itself and if there was an agreement as alleged by the second respondent, he would not have kept quiet after knowing that the amount received by the first petitioner was remitted to his account and it shows the hollowness of the contentions raised by the second respondent. Learned counsel also pointed out that as per the statement of the broker, as well as the document writer recorded under section 161 of Code of Criminal Procedure it was the second respondent who contacted them and under whose instructions they acted as broker and the scribe and as he was not in India the amount was only paid through the first petitioner. But that is not the case alleged in the complaint and it also shows that the case projected by the second respondent is false. Learned counsel further argued that as per seizure mahazar by which the alleged draft of the sale deed to be executed jointly in the name of the first petitioner, was shown to the second respondent by the Crl.M.C.4337/2008 7 first petitioner when he was called to his house and the statement of the scribe shows that the draft after preparing the same was given to the first petitioner and if that be so the draft could not have been produced by the scribe before the police as seen in the scene mahazar and that itself is sufficient to disbelieve the case of preparation of a draft sale deed as alleged. Learned counsel also pointed out that O.S.822/2007 was subsequently filed by the second respondent before Sub Court, Thrissur setting up the alleged agreement, which was not on 10.8.2005 but 1.8.2005 and the prayer in the suit is either to execute the sale deed in respect of half of the property to the second respondent or to pay damages of Rs.18,48,450.00 which is allegedly the loss of profit and also for the excess consideration allegedly paid and by Annexure IV order learned Sub Judge has prima facie found that the case of the second respondent is not true and in such circumstance continuation of the proceedings is only an abuse of process of the court and it is to be quashed. 5. Learned counsel appearing for the second respondent argued that the allegations in the complaint establish that second respondent was induced by the first petitioner to part with Rs.one crore and Rs.5 lakhs on the promise that the property would be purchased jointly in the name of the first petitioner and the second respondent, after getting Crl.M.C.4337/2008 8 an agreement for sale in case the property could not be sold for profit and it was specifically undertaken that the profit will be divided equally and as against the promise sale deeds were obtained not in the joint name of the first petitioner or second respondent but in the name of the wife and the son of the first petitioner and as ingredients of the offences are made out in the complaint, as well as on the materials collected at the time of investigation, invoking the power under section 482 of Code of Criminal Procedure, it is not for this court to appreciate the evidence and find whether petitioners would be convicted or not and hence the proceedings cannot be quashed. 6. Learned counsel also argued that the learned Magistrate has considered the question whether a charge is to be framed or petitioners are to be discharged and by Annexure VIII order, the petition for discharge was dismissed and in such circumstance, petitioners are not entitled to approach this court under section 482 of Code of Criminal Procedure without challenging Annexure VIII order and therefore the petition is only to be dismissed. 7. On hearing the learned counsel and going through the records, it is absolutely clear that the real dispute between the parties is purely of civil nature. According to the second respondent, there was an oral agreement Crl.M.C.4337/2008 9 entered into by the first petitioner and the second respondent, whereunder first petitioner promised to the second respondent that a property having an extent of 52 cents is available for sale and as there is good market for real estate business it could be purchased in their joint names and thereafter it could be sold for higher value and the profit could be divided equally. According to second respondent, pursuant to the promise an oral agreement was entered into and Rs.50 lakhs was paid by cheque on 5.8.2005 and thereafter out of Rs.one crore Rs.5 lakhs, was also paid. But in violation of the agreement sale deed was not obtained in the joint name of the first petitioner and the second respondent and the profit was not shared and thereby he sustained loss for which a civil suit is already filed and it is pending. The question is whether based on the complaint and the materials collected in the investigation an ingredients of the offence is made out and whether the criminal prosecution is only an abuse of process of court. 8. Though learned counsel appearing for the second respondent relied on the decision of the Apex Court in Medchl Chemicals & Pharma (P) Ltd v. Biological E. Ltd (2000(3) SCC 269) the facts are entirely different and has no application to the facts of the present case where the very existence of the agreement is in dispute and what is claimed by the second respondent is an oral agreement for Crl.M.C.4337/2008 10 sale and that too entered on 10.8.2005 and contended that in terms of the agreement Rs. 50 lakhs was paid five days earlier to the date of the agreement. 9. If the case of the second respondent is to be believed, he has not taken any active part in the transaction and he was induced to part with money, believing that first petitioner would act as agreed between them. On the other hand, if the statement of the scribe, the broker and the attesting witnesses are to be believed, second respondent had taken active part and was aware of all the details at the relevant time in which case the allegations in the complaint can never be true. Moreover, as per the complaint the case is that in violation of the terms of the agreement and in breach of trust, the sale deed was executed in the name of the first petitioner as well as his wife and son, the statement of the second respondent recorded under section 161 of Code of Criminal Procedure shows that second respondent was aware of the execution of the sale deed in the name of not only the first petitioner, but that of petitioners 2 and 3 also and he was satisfied the promise that he would be paid the profit at the time when the property is sold for excess amount. If that be the case, the breach of trust could only be when later the properties sold in excess amount and the profit is not given to the second respondent. That is Crl.M.C.4337/2008 11 not the case in the complaint. When the entire materials are appreciated it is absolutely clear that continuation of proceedings before the learned Magistrate is only an abuse of process of court. There is no allegations to constitute any offence as against petitioners 2 and 3, the wife and the son. Hence it can only be quashed. As the second respondent has already approached the civil court for appropriate relief, the quashing of the complaint will not prejudice his right. Whatever stated in this petition, is only for the purpose of the criminal case and will not be binding for the civil court. Petition is allowed. C.C.1916/2007 on the file of Judicial First Class Magistrate Court-II, Thrissur is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006