IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 Crl.MC.No. 900 of 2007() ------------------------ CRRP.31/2002 of SESSIONS COURT, THRISSUR CMP.3819/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONER(S): --------------- 1. MARY, W/O JOSE, CHIRAYATH HOUSE, MOOTHEDATH DESOM,PERINGOTTUKARA P.O, THANNYAM VILLAGE,THRISSUR TALUK. 2. JOSE, S/O.OUSEPH,-DO- BY ADV. SRI.DILIP J. AKKARA SRI.B.K.PURUSHOTHAMAN SRI.AYPE JOSEPH RESPONDENT(S): --------------- 1. ARAVINDAKSHAN, S/O.KRISHNAN,KUNJARA HOUSE,PERINGOTTUKARA P.O,THANNYAM VILLAGE,THRISSUR TALUK. 2. THE STATE OF KERALA REPRESENTED BY THEPUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.A.SHAJI FOR R1 R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 900 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2009 O R D E R The petitioners, spouses, have come before this Court with a prayer that the criminal prosecution initiated against them by the first respondent/complainant may be quashed invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. The first petitioner/accused is the owner of about 63 cents of land. The second petitioner/accused is her husband. They allegedly entered into an agreement with one Shaji on 24.11.1998 for sale of the said item of property. An amount of Rs.10,000/- was received by way of advance/earnest money and the balance amount of Rs.65,000/- was agreed to be paid later as per the said written agreement dt.24.11.98. On 26.11.1998 the balance amount of Rs.65,000/- is also alleged to have been paid by the said Shaji and received by the petitioners. Sale Deed was not executed. The period stipulated for the performance of the agreement had elapsed. Crl.M.C.No. 900 of 2007 2 2. At that juncture, the petitioners allegedly entered into another agreement with the defacto complainant, the first respondent herein, agreeing to sell the very same property to him for a consideration of Rs.2,52,000/- That agreement was entered into on 4.8.1999. In that agreement the earlier agreement with Shaji was specifically recited. It was recited that towards the sale consideration of Rs.75,000/- an amount of Rs.10,000/- had been received. The sale consideration was received in advance as per agreement dt. 4.8.1999 for the purported purpose of discharging the liability in respect of the earlier transaction. Possession of the property was also handed over to the first respondent as per agreement dt.4.8.1999. Though the defacto complainant continued to remain in possession on the strength of the said agreement, the sale deed was not executed and in these circumstances the defacto complainant filed a complaint before the learned Magistrate alleging commission of the offence of cheating by the petitioners. That complaint was referred to the police and the police after due investigation submitted a refer report, which was accepted. 3. The first respondent filed a protest complaint making identical allegations. The learned Magistrate considered the said complaint in Crl.M.C.No. 900 of 2007 3 accordance with law and by Annex.A3 order dt.6.10.2001 dismissed the said complaint under Section 203 Cr.P.C. holding that no sufficient ground has been revealed to justify issue of processes under Section 204 Cr.P.C. The dismissal of that complaint was challenged before the Sessions Court in revision and the Sessions court dismissed the said complaint on the ground that there has been delay. Dismissal of the private complaint under Section 203 Cr.P.C. thus became final. 4. Thereafter the first respondent filed another private complaint raising identical allegations again against the petitioners. On that complaint cognizance has been taken by the learned Magistrate and it is aggrieved by such course adopted by the learned Magistrate that the petitioners have come before this Court now. 5. The learned counsel for the petitioners submits that the learned Magistrate having already accepted the refer report submitted by the police after due investigation and the same Magistrate having later dismissed the complaint under Section 203 Cr.P.C., which dismissal has become final with the rejection of the revision petition as barred by limitation by the revisional court, the learned Magistrate was totally unjustified in taking cognizance and issuing process under Crl.M.C.No. 900 of 2007 4 Section 204 Cr.P.C. The learned counsel for the petitioners submits that no circumstances whatsoever exist to justify the entertainment of a subsequent complaint after successive dismissal of the earlier complaint before the police and the Magistrate. No circumstances whatsoever exist to justify the cognizance taken afresh on the basis of the subsequent complaint, contends the learned counsel for the petitioners. 6. The learned counsel for the first respondent on the contrary submits that entertainment of a second complaint by a Magistrate, who has earlier accepted a refer report submitted by the police or had earlier dismissed a complaint under Section 203 Cr.P.C., is not anathema to law and in a proper case such second complaint can be entertained, notwithstanding the earlier acceptance of the refer report submitted by the police and the later dismissal of the complaint under Section 203 Cr.P.C. on merits. Counsel relies on the decisions in Mahesh Chand v. Janardhan Reddy ((2003) 1 SCC 734) and Poonam Chand Jain v. Fazru (2005 Crl.L.J. 100). 7. I have no quarrel with the proposition that a second complaint can be entertained by the learned Magistrate if sufficient circumstances Crl.M.C.No. 900 of 2007 5 do exist to justify the entertainment of such a later complaint. In the instant case the earlier complaint has been dismissed on merits. An attempt was made unsuccessfully to challenge the dismissal of the complaint under Section 203 Cr.P.C. In these circumstances it does not lie in the mouth of the complainant/respondent that there has been no proper consideration of the complaint. The order passed by the learned Magistrate under Section 203 Cr.P.C., a copy of which is produced as Annex.A3, clearly shows that the relevant circumstances have been adverted to by the learned Magistrate. 8. Undaunted, the learned counsel for the first respondent submits that the complainant had come to know of subsequent facts, which in any event justifies the filing of a subsequent complaint and entertainment of such complaint by the learned Magistrate. 9. What is the subsequent circumstance? The learned counsel submits that in the agreement with Shaji Rs.10,000/- towards sale consideration of Rs.75,000/- was paid as earnest money deposit initially. Within two days the balance amount of Rs.65,000/- was paid and the entire sale consideration was paid. This fact - of subsequent payment of Rs.65,000/- - was suppressed and the complainant came to Crl.M.C.No. 900 of 2007 6 know of this fact only later when the civil court passed Annex.A2 decree in O.S.1505 of 2000. The judgment in that case, though not produced along with the Crl.M.C., a copy of the same has been placed before me. The learned counsel for the respondent contends that in as much as the complainant came to know of receipt of the entire sale consideration by the petitioners within two days of the agreement only later after the judgment in the civil suit was pronounced, the complainant is justified in filing a renewed complaint after the decree was passed. 10. The learned counsel for the petitioners stoutly opposes this contention and points out that in Annex.A5 complaint i.e. the initial complaint which was dismissed under Section 203 Cr.P.C., very specific allegation was raised that the complainant had come to know that the entire sale consideration had been paid. I have been taken through the relevant averments in Annex.A5. In paragraph 4 of the said complaint it has been unambiguously averred that the entire sale consideration had been paid and received by the petitioners when they entered into the agreement with the defacto complainant. Crl.M.C.No. 900 of 2007 7 11. I am, in these circumstances, satisfied that the respondent/ defacto complainant is not entitled to any benefit or advantage emanating from the decisions referred above. No new circumstance has come to the notice of the complainant subsequent to the dismissal of the private complaint under Section 203 Cr.P.C. The mere fact that that circumstance - payment of Rs.65,000/- is confirmed by the judgment and decree of the civil court cannot justify the entertainment of a renewed complaint by the court below, which had already dismissed such complaint earlier under Section 203 Cr.P.C. I am in these circumstances satisfied that the petitioners are entitled to be reliefs prayed for. 12. This Crl.M.C. is allowed. The cognizance taken against the petitioners by the learned Magistrate in C.C.539 of 2004 is hereby quashed. (R. BASANT) Judge tm