IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.MC.No. 3443 of 2009() ------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.4781/2008 Dated 06/08/2008 CC.1722/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER(S): ACCUSED: ----------------------------------------- ABBAS HASSAN KUTTY, AGED 46 YEARS, S/O.HASSAN KUTTY, MANAGING DIRECTOR, HOTEL CALICUT GREEN CASTLE (P) LTD, 11/243. POST VENGANELLOOR, CHELAKKARA THRISSUR 680 586. BY ADVS. MR.C.A.NAVAS, MR.SHIRAZ ABDULLA, SMT.C.S.SIMI. RESPONDENT(S): COMPLAINANT & DEFACTO COMPLAINANT: -------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SUB INSPECTOR OF POLICE, WADAKKEKAD POLICE STATION, THRISSUR DISTRICT. 3. SHANAVAS, AGED 44 YEARS, S/O.HYDROSE HAJI, PAYYURAYIL HOUSE,PUNNAYOORKULAM DESHOM CHAVAKKAD THALUK. R1 & R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.3443 OF 2009 ------------------------------------------ Dated 15th December 2009 O R D E R Petitioner is the accused in C.C.1722/2008 on the file of Judicial First Class Magistrate, Kunnamkulam taken cognizance for the offence under Section 420 of Indian Penal Code on Annexure-A10 final report. Third respondent is the de facto complainant. Annexure-A2 complaint was filed by the third respondent before Judicial First Class Magistrate, Kunnamkulam which was sent for investigation under Section 156(3) of Code of Criminal Procedure based on which crime No.345/2008 of Vadakedad police station was registered and after investigation Annexure-A10 final report was submitted. Crmc 3443/09 2 This petition is filed under Section 482 of Code of Criminal Procedure to quash the final report as well as Annexure-A2 complaint and cognizance taken contending that it is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner argued that Annexure-A4 agreement was entered into by the petitioner and third respondent on 26/11/2005, whereunder third respondent was entrusted with the construction work of Hotel Calicut Green Castle Private Limited and as seen from Annexure-A4 agreement, towards the agreed cost of Rs.5,00,000/-, cheque No.339218 was entrusted with third respondent and later Crmc 3443/09 3 Rs.4,00,000/- was paid in cash and another cheque drawn in the account maintained in Federal Bank, Kondotty Branch was handed over to third respondent and Annexure-A6 receipt stating these facts was obtained from third respondent on 1/1/2008. Annexure-A7 agreement based on which Annexure-A2 complaint was filed is a forged agreement and petitioner did not execute the agreement at all and petitioner filed C.M.P.2852/2008 before Judicial First Class Magistrate, Malappuram against third respondent, alleging that he has committed the offences under Sections 420, 468, 384, 385 and 379 of Indian Penal Code by forging the documents and by committing theft of the records of the petitioner and the case is pending enquiry before the learned Magistrate and in such Crmc 3443/09 4 circumstances, the case is to be quashed. Learned counsel also argued that in the nature of the transaction pending between petitioner and third respondent, there is no likelihood of the agreement for sale as evidenced by Annexure-A7 and nobody will pay consideration of Rs.10,00,000/- under the said agreement, which is written in a single paper without showing even description of the property and in such circumstances, learned Magistrate should not have taken cognizance of the offences. 4. This petition is filed under Section 482 of Code of Criminal Procedure to quash the final report and the cognizance taken by the learned Magistrate. Based on the disputed materials, the case cannot be quashed as sought for. Though it was argued Crmc 3443/09 5 that Annexure-A7 agreement was not executed by the petitioner and it was fraudulently created by the third respondent, it is a matter for consideration by the learned Magistrate and cannot be decided in this petition under Section 482, without recording the evidence. Similarly, for the reason that earlier to the date of Annexure- A7 agreement, petitioner and third respondent had entered into Annexure-A4 agreement and towards the amount a signed cheque was given and later 4/5 portion of the cheque was paid in cash and for the remaining 1/5 portion another cheque was issued, evidenced by Annexure-A6, cannot be taken as a reason to discard Annexure-A7 agreement, as sought for. So also for the reason that in Annexure-A7 agreement, the property agreed to be sold was Crmc 3443/09 6 not properly described, is not a ground to prima facie disbelieve Annexure-A7, when the agreement shows that what was agreed to be sold thereunder is the property obtained by the petitioner as per a registered sale deed, when there is no case for the petitioner that property obtained by registered sale deed is not the entire property agreed to be sold under Annexure-A7. These are all matters which are to be decided only on evidence. In such circumstances, granting liberty to the petitioner to raise all the contentions before the learned Magistrate, including the liberty to seek discharge under Section 239, petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.