IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.MC.No. 3023 of 2008() ------------------------- C.C. 25 OF 2008 OF JFCM, ADIMALY. PETITIONER(S): ---------------------- R.KRISHNANKUTTY AGED 52 YEARS, S/O.RAMAN, PRINCIPAL SUB REGISTRAR SUB REGISTERY OFFICE, ERNAKULAM, KOCHI-16 RESIDING AT THEKKUMKATTIL HOUSE MEMADANGU P.O.,MOOVATTUPUZHA. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): ------------------------- 1. VARGHESE, AGED 52 YEARS S/O.VARKEY, PUTHAYATHU VEETTIL ADIMALY KARA, MANNAMKANDAM VILLAGE DEVIKULAM TALUK 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM ADV. SRI.SREELAL N.WARRIER FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON 30/01/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 3023 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2010. ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have the further proceedings in C.C. 25 of 2008 on the file of the Judicial Magistrate of the First Class, Adimaly quashed and dropped. 2. Petitioner is the seventh accused in C.C.25 of 2008 for having committed offences punishable under Sections 465, 468, 471 and 120B of the Indian Penal Code. The allegation against the petitioner is that he along with the other accused persons had conspired and brought into existence certain registered documents so as to enure benefit to accused Nos. 2 and 6 on the basis of a fraudulent power of attorney in the name of the first accused. The allegation is that Elias, the brother of the first respondent, executed a power of attorney in Cr.M.C. 3023/2008. 2 favour of the first accused, which is claimed to have been cancelled in 1995. It was thereafter the first accused had executed various sale deeds and that according to the prosecution was with the connivance of the seventh accused. The sales were effected in 1995 and the persons who had purchased the property had made considerable improvements in the property. The suit as O.S 77 of 2006 filed by the first respondent is pending. The complainant pointed out that the petitioner and others are guilty of the offence punishable under Sections 465, 468, 471 and 120B of the Indian Penal Code. Initially, the police after investigation filed a refer report. The complainant filed a protest complaint, on which Judicial Magistrate of the First Class, Adimaly took cognizance. 3. The petitioner would say that the fact that a refer report is filed is a clear indication of the fact that he has nothing to do with the incident and had been unnecessarily dragged in. Pointing out that under such circumstances, he may not be compelled to stand the ordeal Cr.M.C. 3023/2008. 3 of a trial. He prayed for quashing of the further proceedings in C.C.25 of 2008 on the file of JFCM, Adimaly. 3. Learned counsel appearing for the contesting respondent, namely the first respondent, very vehemently opposed the petition. According to him, the petitioner is equally guilty like the others in the case. It is pointed out that the petitioner was aware of the fact that the vendor under the various documents did not have any right to execute the documents and still with full knowledge allowed him to execute the agreements and obtained benefits therefrom. Learned counsel pointed out that the fact that the court below has taken cognizance of the offences shows that there are prima facie materials against the petitioner. If the petitioner has a case that he is innocent, learned Public Prosecutor submits that he could pray for a discharge before the Court below. At any rate, according to the learned counsel, there are no grounds to quash the proceedings. Cr.M.C. 3023/2008. 4 4. A copy of the protest complaint is made available along with the records before this court. It is seen that the complainant, who is the first respondent herein, had laid a protest complaint before JFCM, Adimaly complaining that seven persons conspiring with each other and with the intention to cause harm and loss to the complainant had managed to execute several sale deeds in respect of the properties owned and possessed by the complainant. The complainant was the owner of 2.50 acres of land in Sy.No. 1166 of Adimaly Village. His brother had obtained a purchase certificate in respect of 2.50 acres lying adjacent to the property of the complainant. In respect of 46.100 cents of property, a power of attorney was given to the first accused. According to the complainant, that power of attorney was cancelled in 1995. Knowing fully well that the power of attorney has been cancelled, and that the first accused had no authority to execute the documents in respect of the property owned by the complainant, the petitioner with the connivance of others executed several Cr.M.C. 3023/2008. 5 documents. The complainant would say that the petitioner herein was also actively involved in the transaction and he was fully aware of the fact that the power of attorney holder had no authority to execute the sale deed. It is therefore pointed out that no grounds are made out to interfere with the proceedings. 5. It is difficult to accept the plea of the complainant, who is the first respondent herein. But the fact remains that there are several allegations against the petitioner. Whether they are true or not is a matter to be determined. True, it is on a protest complaint that the cognizance was taken. But that by itself is not sufficient to show that the petitioner is not involved in the offence. The court below will have to apply its mind before issuing summons. Even assuming that the allegations against the petitioner may not be capable of acceptance on the very face of it, the fact remains that it is a matter to be determined and as rightly pointed out by the learned counsel for the first respondent, if as a matter of fact the Cr.M.C. 3023/2008. 6 petitioner has a case that there are no case made out against him, he could plea for a discharge. With the above observation, this petition is dismissed. P. BHAVADASAN, JUDGE sb.