IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.MC.No. 3105 of 2006() ------------------------- OS.122/2006 of SUBORDINATE JUDGE'S COURT, NEYYATTINKARA .................... PETITIONER: --------------- MR.DEEN THOMAS STEPNEY, MANAGING DIRECTOR, SMILE DIRECT RESORTS (P) LTD., THIRUVANANTHAPURAM RESIDING PERMANENTLY AT CB-4, IX-B, CAMBRIDGE 101, MILTON ROAD, ENGLAND. BY ADV. SRI.K.V.SABU RESPONDENT/COMPLAINANT: ------------------------------------------- SUB INSPECTOR OF POLICE, VANCHIYOOR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.5359/06 IN CRL.M.C.NO.3105/06 DISMISSED 31.10.2008. SD/- A.K. BASHEER, JUDGE. /TRUE COPY/ cl A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.M.C.No.3105 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008 O R D E R Petitioner, who has been arraigned as accused No.3 in Crime No.203/2006 of Vanchiyoor Police Station, Thiruvananthapuram, has filed this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against him. Admittedly the petitioner has approached this Court at the stage when the above crime was registered by the Police pursuant to an order passed by the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram under Section 156(3) of the Code of Criminal Procedure. 2. While admitting the petition, this Court had granted interim stay of all further proceedings pursuant to Annexure A3 FIR in the above crime. 3. The case of the deacto complainant, in brief as discernible from Annexure-A7 complaint filed by him before 2 CRL.M.C.NO.3105/2006 the learned Magistrate, is that accused Nos. 1 and 2 in connivance with and in furtherance of a conspiracy with the petitioner herein had cheated him and obtained assignment of a piece of land, which was agreed to be sold by accused Nos.1 and 2 to the defacto complainant. Thus, the defacto complainant alleged that the accused have committed the offences punishable under Sections 406,420 and 120 B read with Section 34 I.P.C. 4. The specific case of the defacto complainant is that accused 1 and 2, who were owners in possession of the property shown in the schedule of Annexure-A5 sale deed, had in fact entered into an agreement with him agreeing to sell the said property after fixing the purchase value on centage basis. The defacto complainant alleged that accused 1 and 2 after agreeing to sell the property to him had received a token advance of Rs.10,000/= on December 22, 2005. Thereafter, on February 14, 2006, accused 1 and 2 had entered into an agreement incorporating the terms and conditions of sale. Vendors/accused 1 and 2 had received a sum of 3 CRL.M.C.NO.3105/2006 Rs.15,00,000/= from the defacto complaint through a cheque. They had agreed to execute the sale deed within 9 months. After receipt of the said advance amount, accused 1 and 2 had made a further demand and received a further sum of Rs.7 lakhs on June 29, 2006. Thereafter on June 30, 2006 a further sum of Rs.3 lakhs was also received by the vendors. But, the defacto complainant alleged that accused Nos. 1 and 2 had sold the property to accused No.3 (petitioner company) ignoring the sale agreement. 5. It is pertinent to note that the above complaint was filed after accused 1 and 2 had executed Annexure A5 sale deed in favour of the company of which petitioner is the Managing Director. The sale deed was admittedly executed on July 13, 2006 and the complaint was filed on August 2, 2006 alleging that the petitioner was also guilty of the offences referred to above since the sale deed was executed pursuant to a conspiracy and with a view to cheat the defacto complainant. 4 CRL.M.C.NO.3105/2006 6. I have perused the complaint and the relevant materials available on record including Annexure-A4 agreement, which was stated to have been executed between one Giriprasad and accused Nos.1 and 2. According to the petitioner, it was pursuant to the said agreement dated December 1, 2005 that the property was conveyed to the petitioner company. Anyhow, having carefully perused the averments in Annexure A7 complaint, I do not find any specific averment with regard to complicity of the petitioner in the case. The only allegation against the petitioner is that accused 1 and 2 had entered into a conspiracy on 14.2.2006 with accused No.3 who is a “foreign citizen” to cause unlawful loss to the complainant and unlawful gain to the accused persons. It is further alleged that the three accused had, pursuant to the above conspiracy, jointly decided to execute the fraudulent illegal document in the name of accused No.3. 7. It is brought to my notice that O.S.No.122/2006 filed by the defacto complainant against accused 1 and 2 before 5 CRL.M.C.NO.3105/2006 the Subordinate Judge's Court, Neyyattinkara has been dismissed. In the said suit, the main prayer was to grant a decree for cancellation of the sale deed referred to above. The other prayer was to grant a decree for permanent prohibitory injunction restraining accused 1 to 3 from alienating the property agreed to be sold to the plaintiff. The petitioner company was defendant No.5 in the suit represented by its Director. 8. In my view, going by the averments made in the complaint against the petitioner, it cannot be said that the petitioner is liable to be tried for the offences alleged in the complaint. Admittedly, petitioner is a permanent resident in England. The only allegation against him is that he had entered into a conspiracy with accused Nos.1 and 2 to get the document executed in favour of the company. From the nature of the allegations, it cannot be said that the petitioner in his capacity as the Managing Director of the Company is liable to be prosecuted for the alleged offences. In my view, such a prosecution will undoubtedly result in miscarriage of 6 CRL.M.C.NO.3105/2006 justice. Therefore, the proceedings pending against the petitioner in Crime No.203/2006 are quashed. However, it is made clear that it will be open to the police to continue with the investigation against the other two accused , if there is no legal impediment, and file charge sheet in accordance with law. (A.K.BASHEER, JUDGE) cl