IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 204 of 2008() ----------------------------------- CC.309/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-V, KOZHIKODE .................... PETITIONER(S): ---------------------- 1. UMAYYA UMMA, AGED 70 YEARS, W/O.VEERANKOYA HAJI, NEDUMOOLIPOTTAMMAL HOUSE, CHERUVANNOOR, KOZHIKODE. 2. N.P. KHALID, AGED 48 YEARS, S/O.VEERANKOYA HAJI, "ENPEES", POST FEROKE, KOZHIKODE-673 631. BY ADV. MR.R.SUDHISH, SMT.M.MANJU. RESPONDENT(S): ------------------------- 1. HANLLALATH, AGED 40 YEARS, S/O.JAFFAR, PARATH HOUSE, NALLALAM AMSOM,DESOM, KOZHIKODE. 2. THE STATION HOUSE OFFICER, NALLALAM, KOZHIKODE. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 & R3 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. R1 BY ADV. MR.P.VIJAYA BHANU, MR.P.M.RAFIQ . THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.204 OF 2008 ------------------------------------------ Dated 15th February 2010 O R D E R Petitioners are the accused and first respondent, the de facto complainant in C.C.309/2006 on the file of Judicial First Class Magistrate-V, Kozhikode. Annexure-A1 complaint was filed by first respondent alleging that petitioners agreed to sell 43 cents of land belonging to first petitioner, for a consideration of Rs.16,250/- per cent and an agreement for sale was executed on 10/11/2002 and when petitioners failed to comply with the conditions, first respondent sent a notice to execute sale deed, a reply was sent by first petitioner that she did not execute the agreement for sale. According to first Crmc 204/08 2 respondent then only he was aware that the agreement for sale was fraudulently executed by the second petitioner and induced first respondent to part with the consideration shown therein and therefore, petitioners committed offences under Sections 468 and 420 read with Section 34 of Indian Penal Code. Annexure-A2 complaint was sent for investigation under Section 156(3) of Code of Criminal Procedure, based on which crime No.271/2005 was registered. After investigation Annexure-A4 final report was submitted. It was taken cognizance by the learned Magistrate for the offences under Sections 420 and 468 read with Section 34 of Indian Penal Code. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A4 Crmc 204/08 3 final report and the cognizance taken. 2. Learned counsel appearing for the petitioners and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioners is that the ingredients of offences under Sections 420 and 468 of Indian Penal Code are not attracted and therefore, continuation of the proceedings is only an abuse of process of the court. Learned counsel argued that when first respondent filed Annexure-A2 complaint alleging that second petitioner committed offence under Section 138 of Negotiable Instruments Act, it is admitted in the complaint that there was settlement of the dispute and seven cheques were issued and Rs.40,000/- was received in Crmc 204/08 4 cash and those cheques were subsequently dishonoured, still there is no allegation that the agreement for sale was executed fraudulently or that the second petitioner took it inside the house and returned representing that first petitioner affixed her signature in the agreement and in such circumstances, the allegations are to be disbelieved. Learned counsel also argued that Annexure-A3 plaint in O.S.314/2006 was filed by first respondent for realisation of Rs.1,50,000/- due under one of the cheques and the plaint also does not disclose these allegations and therefore the allegation in Annexure-A1 complaint that second petitioner induced first respondent to part with the consideration on the representation that first Crmc 204/08 5 petitioner also signed in the agreement is without any bonafides. 4. Learned counsel appearing for first respondent pointed out that when Annexure-A1 complaint discloses that but for the inducement made, making first respondent to believe that first petitioner executed the agreement for sale he would not have paid the amount and when ingredients of the offence is attracted, the case cannot be quashed. 4. Annexure-A1 complaint does disclose the ingredients of the offence against the petitioners. Though learned counsel appearing for the petitioners tried to persuade me to disbelieve the allegations in Annexure-A1 complaint for the omission to plead these material facts Crmc 204/08 6 in Annexure-A2 complaint and Annexure-A3 plaint filed by first respondent, it is not for this court to appreciate the evidence and decide whether allegations in Annexure-A1 complaint is true or not in a petition filed under Section 482 of Code of Criminal Procedure. It is for the petitioners to bring to the notice of the learned Magistrate at the time of trial. In any event, when ingredients of the offence are attracted on the allegations raised, the case cannot be quashed as sought for. Petitioners are at liberty to seek an order of discharge under Section 239 of Code of Criminal Procedure, if no charge is framed. If first petitioner files an application to dispense with her personal presence for that purpose, learned Crmc 204/08 7 Magistrate, shall not insist for her presence. M.SASIDHARAN NAMBIAR, JUDGE. uj.