IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.MC.No. 854 of 2011() ------------------------ CC.756/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. IQUBAL, S/O.KASSIM, BAKERY LABOURER, AYILYAM, TEMPLE LANE, MANKUZHY, PANGAPARA PO-695 001, THIRUVANANTHAPURAM DT. 2. SHAFI, S/O.ALIYARU KUNJU, SALBIL, KOLLOTTU MURI, KULATHUMMAL PO - 695 001, THIRUVANANTHAPURAM. BY ADVS. SRI.K.G.BALASUBRAMANIAN, SMT.AMBILY (PREMKUMAR). RESPONDENT(S): --------------------------- 1. SASANKAN, S/O.SUDHAKARAN, SHARON VIHAR, NULLASSERI, EDAVILAKAM MURI, VEILOOR VILLAGE, PO. - 695 001, THIRUVANANTHAPURAM DT. 2. SHIBU, S/O.ABOOBACKER, SMRITHI, GANDHI NAGAR, EDAVILAKAM MURI, VEILOOR VILLAGE, PO. - 695 001, THIRUVANANTHAPURAM DT. 3. STATE OF KERALA, REPRESENTED BY S.I OF POLICE, MANGALAPURAM POLICE STATION P.O. - 695 001, THIRUVANANTHAPURAM DT. R3 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 854 of 2011 ==================================== Dated this the 18th day of March, 2011 O R D E R Petitioners are accused in C.C. No.756 of 2008 of the court of learned Judicial First Class Magistrate-I, Attingal. They are defendants in a suit for specific performance and the suit was decreed. That decree is under challenge in RFA No.127 of 2011. There is also an interim order of stay of execution as well. While so the first respondent filed a private complaint alleging that petitioners trespassed into the property in violation of the order of injunction passed by the trial court. It is also alleged that with intend to cheat the first respondent, first petitioner agreed to sell the property to the second respondent as per agreement dated 25.05.2006 and received Rs.1,00,000/- as advance. On 30.07.2006 second respondent agreed to sell the property to the first respondent. Later first petitioner refused to execute the document. Respondents 1 and 2 are stated to have obtained an order of injunction against petitioners transferring the property. Further allegation is that while the said order was in force, first petitioner transferred the property to the second petitioner. Learned counsel submitted that no offence is involved and what is CRL.M.C. No.854 of 2011 -: 2 :- involved is only a civil dispute. It is also contended that violation of order of injunction of the civil court cannot be a matter for criminal prosecution. I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. Private complaint was forwarded to the police for investigation. Police registered Crime No.38 of 2010 for offence under Sections 417, 420 and 465 read with Section 34 of the Indian Penal Code and submitted final report. 3. Learned counsel submitted that the court has not so far framed charge against petitioners. If that be so, petitioners have the opportunity under Section 239 of the Code of Criminal Procedure (for short, “the Code”) to plead discharge if according to them allegations in the final report do not disclose any offence as alleged. Since that remedy is available to the petitioners there is no reason why this Court should interfere at this stage. Hence without prejudice to the right of petitioners to plead discharge under Sec.239 of the Code, this Criminal Miscellaneous Case is closed. THOMAS P. JOSEPH, JUDGE. vsv