IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 Crl.MC.No. 3729 of 2009(A) -------------------------------------- [CC.NO.910/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, HOSDURG] .................... PETITIONERS/ACCUSED NOS 1 & 2: --------------------------------------------------- 1. SUKKU,AGED 66 YEARS,D/O.LATE SARTHAYA, DARMBA SAMATHADUKKA,PUTHUR TALUK, DAKSHIN KARNATAKA DISTRICT. 2. SHYAMALA,AGED 42 YEARS,D/O.SHEELAVATHI, ANUGRAHA,SALMARA SUTHRA VITTU,PUTHUR TALUK, DAKSHIN KARNATAKA DISTRICT. BY ADVS. MR.JAWAHAR JOSE, SMT.CISSY JAWAHAR. RESPONDENT/COMPLAINANT AND STATE: -------------------------------------------------------------- 1. C.ABDULLA HAJI,AGED 64 YEARS, S/O.MAMMUNHI HAJI,THOTTIYIL,P.O.KEEKAN, PALLIKARA VILLAGE,HOSDURG TALUK, KASARAGODE DISTRICT. 2. THE STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/02/2010, ALONG WITH CRL.M.C NO.3697 OF 2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3729 & 3697 OF 2009 =========================== Dated this the 16th day of February,2010 ORDER Petitioners in Crl.M.C.3729/2009 are accused 1 and 2 and petitioners in Crl.M.C.3697/2009 are accused 3 to 8 on the file of Judicial First Class Magistrate's Court, Hosdurg. These petitions are filed under section 482 of the Code of Criminal Procedure to quash Annexure A complaint and the cognizance taken for the offences under sections 420, 423, 465 and 467 read with section 149 of Indian Penal Code. Annexure A complaint was filed by the first respondent alleging that the accused committed offences under sections 420, 423, 461,465 and 467 read with section 34 of Indian Penal Code. Crime 709/2008 of Hosdurg Police Station was Crl.M.C.3729 & 3697 of 2009 2 registered on a complaint filed before Judicial First Class Magistrate Court-I, Hosdurg and sent for investigation under section 156(3) of the Code of Criminal Procedure. After investigation Annexure C refer report was filed stating that the dispute is only civil in nature. It is thereafter Annexure A complaint was filed before the learned Magistrate as a protest complaint. Case of the petitioners is that property having an extent of 87 cents in R.S No.80/4 of Balla Village of Hosdurg Taluk originally belonged to Rama Kamath on jenmam right and it was outstanding in the possession of Doomanna on Moolagani right. On the death of Doomanna, his rights devolved on his four sons namely, Sarthayya, Ramappa, Achutha and Gopalakrishna. Assiya , the wife of the first respondent purchased 1/4th right of Sarthayya under document No.3027/1992, from first petitioner in Crl.M.C.3729/2009, the first accused, who is the daughter of Sarthayya. Later as per assignment deed Crl.M.C.3729 & 3697 of 2009 3 No.750/2000 Assiya devolved the said right to first respondent. The 1/4th right each of Achutha and Gopalakrishna were purchased by Assiya and Summayya, the two wives of first respondent. Thus the wives obtained ½ right. According to first respondent, he obtained 1/4th right and the remaining 1/4th right of Ramappa was purchased by petitioners 1 to 3 in Crl.M.C.3697/2009 who are accused 3 to 5, as per document No.1398/1995. In the assignment deed executed by first accused and the assignment deed obtained by accused 3 to 5, it is stated that on the death of Sarthayya, his rights devolved on her daughter the first accused. Subsequently the wives of accused 3 to 5 purchased 1/8th right of Shyamala the petitioner in Crl.M.C.3729/2009 the second accused under registered sale deed No.2349/2006. As per the document she is the daughter of Sheelavathi, the other daughter of Sarthayya. According to first respondent, Sarthayya had no daughter by name Crl.M.C.3729 & 3697 of 2009 4 Sheelavathi and Shyamala is therefore not a legal heir of Sarthayya and wives of accused 3 to 5 did not derive any right as per the sale deed executed by Shyamala and accused 3 to 5 fraudulently created the sale deed. It is on that allegation the complaint was filed. Learned Magistrate took cognizance on the protest complaint with the aid of Section 149, when there is no case of an unlawful assembly evidently on a mistaken impression that when the accused are more than five, Section 149 of Indian Penal Code applies, on the sworn statement of the complainant as well as two witnesses. 2. The case as against the first accused is different. The first respondent contended that first accused with a dishonest intention to cheat made his wife Assiya to believe that she is the sole legal heir of Sarthayya and induced her to purchase the property. Therefore on the allegation an offence under section 420 of Indian Penal Code Crl.M.C.3729 & 3697 of 2009 5 would be attracted as against the first accused. But as against the others, the case is entirely different. As far as accused 3 to 5 are concerned, case of the first respondent is that in the sale deed obtained by them, it is mentioned that Sarthayya had only one daughter the first accused. But they are not the executants of that document. They are the assignees under the document. If at all, the recital is made by the executant Ramappa the brother of Sarthayya. Therefore accused 3 to 5 cannot be found fault for mentioning about the sole legal heir of Sarthayya, especially when even if Sarthayya had any other legal heir, it will not affect the rights obtained by them from Ramappa. 3. Learned counsel appearing for the first respondent argued that it is thereafter accused 3 to 5 purchased the rights of Shyamala, claiming that she is having 1/8th right, in the name of their wives and it clearly shows that there was collusion between the first accused and accused 3 Crl.M.C.3729 & 3697 of 2009 6 to 5. The case could have been appreciated, if first respondent had a case that along with the first accused, accused 3 to 5 approached Assiya or first respondent to induce them to believe that the only legal heir of Sarthayya is the first accused. It is to be borne in mind that respondents 3 to 5 purchased the property under document No.1398/1995 only three years after the purchase made by Assiya from the first accused. Therefore by no stretch of imagination, accused 3 to 5 could be brought to the net to even if any offence was committed by the first accused. If later accused 3 to 5 realised that apart from the first accused Sarthayya, there is one more legal heirs, there is nothing wrong in accused 3 to 5 purchasing that share either in their names or in the name of their wives. No criminal offence could be attributed by such purchase. The prosecution as against petitioners in Crl.M.C.3729/2009 is clearly an abuse of process of the court and is liable to be quashed. Crl.M.C.3729 & 3697 of 2009 7 4. Similar is the case as against the second accused, the second petitioner in Crl.M.C.3729/2009. She is the assignor of document No.2349/2006 in favour of accused 3 to 5. The question whether her mother Sheelavathi is the daughter of Sarthayya is not a matter to be settled in the criminal prosecution. It is up to the civil court to decide the matter in an appropriate proceedings. There is also no basis for the allegation that second accused committed any offence, as first respondent has no case that she had made any inducement to his wife Assiya. Therefore prosecution as against the second accused is also an abuse of process of the court. But the learned Magistrate can proceed against the first accused. First accused is entitled to raise all the contentions before the learned Magistrate. She is also entitled to file an application for discharge under section 245 of Code of Criminal Procedure. Crl.M.C.3729 & 3697 of 2009 8 Crl.M.C.3697/2009 is allowed. The cognizance taken as against accused 3 to 8 in C.C.910/2009 is quashed. Crl.M.C.3729/2009 is partly allowed. The prosecution as against the second accused in C.C.910/2009 is quashed. Learned Magistrate can proceed as against the first accused. The first accused is entitled to seek an order of discharge under section 245 of Code of Criminal Procedure raising all the contentions raised herein. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006