IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 Crl.MC.No. 133 of 2007() ---------------------------------- CC.324/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-V, KOZHIKODE .................... PETITIONERS/ACCUSED ----------------------------------- 1. SUMANGALA, D/O. KRISHNAN KUTTY, 'SHANTHI', P.O.BEYPORE, BEYPORE AMSOM DESOM, KOZHIKODE. 2. SHANTHKUMARI, D/O. VELLAPALLI CHOYIKUTTYKURUP, MATHROTIKKAL HOUSE, BEYPORE AMSOM DESOM, KOZHIKODE. 3. BALAKRISHNAN, S/O. CHOYIKUTTY KURUP, MATHROTIKKAL HOUSE, BEYPORE AMSOM DESOM, KOZHIKODE. BY ADV. MR.RAJESH NAMBIAR RESPONDENT(S): ------------------------- 1. P.V.PRAKASAN, S/O. APPU, VAISHYAM PURATH VEEDU, NALLAM AMSOM DESOM, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI. R1 BY ADV. MR.A.BALAGOPALAN , MR.A.RAJAGOPALAN , MR.K.SANEESH KUMAR, SMT.P.SEENA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 133 OF 2007 =========================== Dated this the 13th day of July,2009 ORDER Petitioners are the accused in C.C.324/2006 on the file of Judicial First Class Magistrate Court-V, Kozhikode taken cognizance by the learned Magistrate on Annexure A complaint filed by the first respondent. The case of the first respondent in Annexure A complaint is that petitioner had agreed to assign 34 cents of property in R.S.No.63/1 and 2 of Beypore Village for a total consideration of Rs.9 lakhs and as it was represented that liability of Rs.5 lakhs in favour of Kerala Financial Corporation is outstanding first respondent paid Rs.9 lakhs as the advance consideration and though petitioners agreed to execute a sale deed after getting liability on the Kerala Financial Corporation discharged, petitioner did not discharge the liability or execute the sale deed. It is alleged that with the intention to cheat, petitioners dismantled the machineries and sold its parts and substituted them with cheap parts and the intention is only to cheat and therefore petitioners Crl.M.C.133/2007 2 committed the offence under section 420 read with section 34 of Indian Penal Code. Alleging breach of the terms of the agreement for sale in respect of very same transaction, first respondent had instituted O.S.73/2005 before II Additional Sub Court, Kozhikode which was later dismissed under Annexure D judgment after recording the evidence. It is submitted that an appeal is pending before this court challenging that judgment. 2. Petitioners filed this petition under section 482 of the Code of Criminal Procedure to quash the proceedings contending that continuation of the proceedings is only an abuse of process of court. It is contended that there was no agreement for sale at all and the Civil Court has already found that there was no agreement for sale and therefore the very foundation of the case is unsustainable. It is also contended that on the allegations in the complaint, petitioners cannot be prosecuted and therefore it is to be quashed. 3. Learned counsel appearing for the first respondent argued that the allegations in the complaint makes out an offence under section 420 of Indian Penal Code. The fact that in respect of the same transaction, for realisation of the amount due, first respondent instituted a suit and that suit was dismissed is not fatal when an appeal is pending Crl.M.C.133/2007 3 and so long as the allegations in the complaint reveal ingredients of an offence under section 420 IPC, it cannot be quashed. Learned counsel also argued that Annexure D judgment cannot be looked into as it does not satisfy Section 41 of the Indian Evidence Act. 4. If the allegations in Annexure A complaint as such is accepted, the ingredients of an offence is not made out petitioners are entitled to get the complaint quashed. The question is whether the ingredients of an offence is made out. 5. A reading of Annexure A complaint only disclose that petitioners agreed to assign 34 cents of the property in R.S.No.63/1 and 2 of Beypore Village inclusive of the Bakery Unit, its machineries, vessels and other articles, for a total consideration of Rs.9 lakhs and towards its consideration Rs.9 lakhs was paid as advance. The complaint does not disclose whether the agreement for sale is oral or documentary. Even the exact date of the alleged agreement is not mentioned. Even if it is taken that there was an agreement for sale and as against the terms of the agreement, after receiving the consideration, petitioners did not execute the sale deed and instead dismantled the machinery and sold its parts and substituted with cheap parts, the question is whether an offence under section 420 Crl.M.C.133/2007 4 of Indian Penal Code is made out. In order to attract an offence under section 420 of Indian Penal Code first respondent has to plead and establish that at the time when he was made to part Rs.9 lakhs, petitioners have a dishonest intention to cheat. Any subsequent cheating or subsequent intention, will not attract an offence under section 420 of Indian Penal code. There is absolutely no allegation in Annexure A complaint that at the inception petitioners had a dishonest intention to cheat. Though there is an allegation that subsequently, with the dishonest intention they did not clear the liability to the Kerala Financial Corporation or did not execute the sale deed and also dismantle the parts of the machinery and sold the same, in the absence of a case that there was a dishonest intention at the time when petitioners allegedly agreed to sell the property and induced first respondent to part with Rs.9 lakhs, an offence under section 420 IPC is not attracted. If that be so, continuation of the proceedings as against the petitionersis only an abuse of process of court. For that reason, petition is to be allowed. C.C.324/2006 on the file of Judicial First Class Magistrate Court V, Kozhikod is quashed. Learned counsel appearing for the petitioners, submitted that this order may not operate against the petitioners in canvassing their Crl.M.C.133/2007 5 case in the existing first appeal. On the merit of the civil suit nothing has been stated in the petition and this order will not affect their right. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006