IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1271 of 2007(E) ------------------------------- CMP.1291/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- M.V.KUNHAPPAN, AGED 49 YEARS, S/O.MANIKKAN, RESIDING AT VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1271 OF 2007 ............................................ DATED THIS THE 17th DAY OF DECEMBER, 2008 ORDER Revision petitioner is the complainant in CMP 1291 of 2006 before Judicial First Class Magistrate, Payyannur. Complaint was filed against two accused alleging that they committed offences under Section 420 and 465 read with 34 IPC. Learned Magistrate, after recording the sworn statement of revision petitioner and his witness, dismissed the complaint under Section 203 of Code of Criminal Procedure stating that there is no sufficient ground to proceed with the complaint. Revision petition is filed contending that the order is illegal and learned Magistrate did not consider the materials and when materials available prima facie prove the offence, learned Magistrate should have proceeded further by issuing summons under Section 204 of Code of Criminal Procedure. 2. Case of revision petitioner in the complaint was that he was in search of a property at Payyannur and knowing this, second accused approached him stating that 31 cents in R.S.78/70 and 78/9 of Payyannur Taluk belongs to him and was available for sale and showed the original sale deed and tax CRRP 1271/2007 2 receipts. It is the case of revision petitioner that petitioner agreed to purchase the property and thereafter for valid consideration, second respondent executed registered sale deed 2770/99 and put petitioner in possession and he has been in possession of the property after constructing a compound wall on all sides. It was contended that on 31.10.2005, first accused attempted to trespass into the property and revision petitioner had to file a civil suit before Munsiff Court, Payyannur as O.S.200/05 and in that suit, first accused raised a contention that the property was sold to him by second petitioner on 26.11.1997. According to revision petitioner, second accused is the agent of first accused and it is in furtherance of their common intention, suppressing the sale, second accused sold the property to revision petitioner and induced revision petitioner to pay the consideration and therefore offences under Section 420 and 465 read with 34 IPC were committed. As dismissal of the complaint was under Section 203 of Code of Criminal Procedure, before the appearance of accused, accused were not impleaded or notice taken to them. 3. The sworn statement of revision petitioner and the witness, along with documents produced by the complainant CRRP 1271/2007 3 show that second accused executed a sale deed in favour of revision petitioner, suppressing the existence of the earlier sale in favour of first accused. Learned Magistrate found that copy of the encumbrance certificate dated 2.7.1999 would show that there is no entry regarding execution of a document in favour of first accused but for the reason that revision petitioner did not produce the encumbrance certificate obtained in 2005, which shows that an earlier sale deed was registered, learned Magistrate found that there is no material to proceed further. Revision petitioner has produced copy of the registered sale deed executed on 26.11.1997. That sale was suppressed when the property was sold again to revision petitioner by the second accused. It is clear from the materials that learned Magistrate did not conduct a proper enquiry and dismissed the complaint under Section 203 of Code of Criminal Procedure, without considering whether there are sufficient grounds to proceed. In such circumstances, the order dismissing the complaint dated 5.8.2006 is illegal and could only be set aside. 4. Revision petition is allowed. The order dated 5.8.2006 of Judicial First Class Magistrate, Payyannur dismissing CMP 1291 of 2006 is set aside. CMP 1291 of 2006 is restored to file. CRRP 1271/2007 4 Learned Magistrate is directed to conduct proper inquiry and consider whether the materials produced by petitioner along with the sworn statement are sufficient to proceed as provided under Section 204 of Code of Criminal Procedure and if not complaint is to be dismissed under Section 203 of Code of Criminal Procedure. Send back the records. M.SASIDHARAN NAMBIAR, JUDGE lgk/-