IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Crl.MC.No. 3148 of 2004() ------------------------- CC.92/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER/1st accused: ------------ WALTER SAHADEVI, C/O.MARIAM DELLO, D'NELLO COMPOUND, NEAR THOMAS NERONA COMPOUND, GORIGUDI, MANGALORE. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.SUNIL SHANKER RESPONDENTS/COMPLAINANT AND ACCUSED NOS.2 TO 4 AND STATE: ------------------------------------------------------------------------------ 1. P.NATARAJAN, S/O.E.PERUMAL, SUVINA, THALIKKAVU KANNUR. 2. JESSY STANLEY, BEHIND CENTRAL EXCISE OFFICE, KAYAKKUNNU, KANNUR -1. 3. GLADY MENA, KRIPA, MUTTAD P.O. THIRUVANANTHAPURAM. 4. ABDUL SALAM, NEAR GOVERNMENT MTM SCHOOL, NARAYANA PARK, KANNUR. 5. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.M.PAREETH FOR R1 SRI.SUNIL V.MOHAMMED FOR R4 SRIP.K.NOUSHAD PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.13857/04 IN CRL.M.C.3148/04 //DISMISSED// 10.01.08 SD/- (K.P.BALACHANDRAN, JUDGE) K.P.BALACHANDRAN,J. -------------------------------------------------------- CRL.M.C.No.3148 OF 2004-C -------------------------------------- DATED THIS THE 10TH DAY OF JANUARY, 2008 O R D E R Petitioner is the first accused in Annexure-B complaint registered on the file of the Judicial First Class Magistrate's Court- I, Kannur as C.C.No.92/03 for offences under section 120B and section 420 IPC. The prayer of the petitioner in this Crl.M.C. is to quash Annexure-B complaint and all proceedings taken on the basis thereof in C.C.No.92/03 on the file of the Judicial First Class Magistrate's Court-I, Kannur. 2. The case is one which was originally initiated filing a complaint before the Police and that was referred and Annexure- A notice was issued to the first respondent. It is thereafter that Annexure- B complaint was filed. It is the case of the petitioner that offences under section 120B and section 420 IPC read with section 34 thereof on the allegations in Annexure- B complaint are not attracted and that proceeding with the case will only be an abuse of the process of court and is one intended to harass him. CRL.M.C.No.3148/004 2 3. The gist of the allegations in Annexure-B complaint instituted by the first respondent, a broker engaged in arranging sale of immovable property, is that the property belonging to accused Nos.1 to 3 was caused to be sold by his intervention to the 4th accused on an agreed sale consideration of Rs.2,25,000/= per cent, but that the document disclosed only an amount of Rs.1 lakh per cent that by such under valuation proper stamp duty is not paid to Government and thus, the Government is cheated and further that the commission paid to him at the agreed rate of 3% was also only on the sale consideration worked out at Rs.1 lakh per cent and not at the rate of Rs.2,25,000/= per cent. 4. The question of under valuation is a matter which is not to be made subject-matter of a complaint in the nature of Annexure- B. If at all the agreed commission is not paid to the first respondent, it is upto him to file proper civil suit and obtain a decree and realise the amount. In lieu of that they cannot approach the Magistrate by filing a complaint in the nature of Annexure- B. Further, in relation to the allegations in Annexure- B complaint made by the first respondent, there is no offence of CRL.M.C.No.3148/004 3 cheating as defined in section 415 of the Indian Penal Code and for that reason also Annexure- B complaint cannot end in conviction of the petitioner or the other accused for offence under section 420 of the Indian Penal Code read with section 34 thereof or under section 120B thereof. The complaint is ill- conceived and mala fide and continuing with the complaint as against the petitioner will only be an abuse of the process of court. Hence, allowing this Crl.M.C., I quash Annexure- B complaint and all further proceedings taken on the basis thereof in C.C.No.92/03 on the file of the Judicial First Class Magistrate's Court-I, Kannur as against the petitioner. K.P.BALACHANDRAN, JUDGE. dsn