IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Crl.MC.No. 499 of 2010() ------------------------------------ (CC.NO.110/2009 OF CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM) ....... PETITIONER(S): ACCUSED: ----------------------------------------- AMBIKA DEVI, D/O.OMANA AMMA, A.R.NIVAS, PERAPOOR LANE, KODAPANAKUNNU P.O. BY ADVS. SRI.M.BALAGOVINDAN, SMT.MINI GANGADHARAN. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RADHAMMA, D/O.RUGMINI AMMA, T.C.-10/551(1), CHEMPAKAMOODU, NEAR K.S.R.T.C. DEPOT, PEROORKADA, TRIVANDRUM. R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN R2 BY SRI.K.B.MOHAMMED KUTTY, SENIOR ADVOCATE, BY ADV. SRI.S.MOHAMMED AL RAFI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.499/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE COMPLAINT CMP NO.283/2006 DTD. 27/01/2006. ANNEX.B: COPY OF THE F.I.R. NO.64/2006 DTD. 22/02/2006 OF THE PEROORKADA POLICE STATION. ANNEX.C: COPY OF THE REFER REPORT DTD. 4/07/2008. ANNEX.D: COPY OF THE COMPLAINT NO.CMP. 5706/2008 DTD. 28/11/2008. ANNEX.E: COPY OF THE DEED EXECUTED BY THE 2ND RESPONDENT. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss N.K.BALAKRISHNAN, J ----------------------------------------- Crl.M.C. No. 499 of 2010 ------------------------------------------ Dated this the 4th day of November, 2011. ORDER The petitioner is one of the accused in CC.110/09 on the file of CJM, Thiruvananthapuram. The second respondent is the complainant in that case. The complaint was filed by the second respondent before the learned Magistrate alleging that the petitioner and another accused committed offence punishable under Section 420 and 120B r/w 34 IPC. The gist of the case is that the property mentioned in document No. 1897/05 belongs to the second respondent. The accused induced her to believe that the document which she was requested to execute was only a security deed /mortgage deed for the purpose of obtaining a sum of Rs. 1,00,000/- (Rupees One lakh only) from the accused. Long thereafter, she came to know that the document which was in fact got executed and registered was an out-right sale deed. According to the respondent, the accused entered into a criminal conspiracy and made mis-representation making her to believe that only a deed Crl.M.C. No. 499 of 2010 -: 2 :- of security/mortgage was to be executed for granting a loan of Rs. 1,00,000/-. It was stated by her that the property measures 6.25 cents and there was a new terrace building and two shop- rooms. 2. There were litigations between herself and one Madhavan Nair as OS No.1541/04 and OS No.1686/04. While the suits were pending, the accused approached her and had close contact with the complainant and accordingly the complainant reposed confidence in the first accused. When the complainant requested for a loan of Rs. 1,00,000/-, the first accused told her that she was not having money but if a document is executed the amount can be arranged from one Anil Kumar and accordingly on 06.05.2005 the accused reached the house of the complainant and making her believe that she has to execute a security document. Complainant went along with the accused to the office of the Sub Registrar, Sasthamangalam and executed the document. It was executed only as a Crl.M.C. No. 499 of 2010 -: 3 :- document of security for the loan amount. This in short is the case of the complainant. 2. The learned counsel for the petitioner would submit that after execution of the sale deed and after getting it registered it is easy for the vendor to make such allegations. When a sale deed id executed and registered unless there are strong materials to hold that the execution is vitiated as alleged by the complainant, the court will not be justified in holding that there was mis-representation. In any event according to the accused it is only a dispute of civil nature. Though it is now stated that a suit was also filed for appropriate relief before the competent civil court with regard to the document alleged to have been obtained by the accused by playing fraud particulars of that suit have not been made available, the question is whether the registered sale deed assailed by the complainant was actually obtained by fraud mis-representation. It is actually an issue to be decided in the civil suit. The contention that Crl.M.C. No. 499 of 2010 -: 4 :- there was concealment of facts or dishonest mis-representation at the time of execution of the document cannot be accepted for a moment, the learned counsel for the petitioner submits. It is further submitted that simply by adding or incorporating some words which are required to attract the offence of cheating a party cannot convert the civil action into a criminal case. The allegation made in the complaint are not sufficient to have the prosecution continued. Those are matters to be considered in the suit. It is also pointed out that the police actually filed a refer report stating that the dispute is of civil nature. Then a protest complaint was filed. The learned Magistrate has not considered all these aspects before taking cognizance of the offence, it is submitted by the learned counsel for the petitioner. The statement of the complainant and the witnesses if any recorded by the learned Magistrate are not produced before the court. In these circumstances, this petition is disposed of as stated below:- Crl.M.C. No. 499 of 2010 -: 5 :- 1.The order passed by the learned Magistrate taking cognizance in the aforesaid case as CC.110/09 of CJM, Thiruvananthapuram is set aside. 2.The learned Magistrate will consider the issue afresh after going through the statements of the complainant and witnesses if any, and the refer report filed by the police and will pass appropriate orders. The complainant will appear before the learned CJM on 24/11/2011. It is made clear that no observation has been made by this court touching-up on the merit of the case advanced by the complainant. This order will not affect the contentions raised by the parties in the suit, filed in respect of the property or the document executed. N.K.BALAKRISHNAN, JUDGE smvd