IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 2581 of 2007() ------------------------- CC.179/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONERS/ACCUSED ---------------------- 1. ANEESH HASHEEM, S/O.HASHEEM, MANTHARA PUTHEN VEEDU, (KINGINI) MANTHARA DESOM, EDAVA VILLAGE. 2. HASHEEM, MANTHARA PUTHEN VEEDU, (KINGINI) MANTHARA DESOM, EDAVA VILLAGE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/COMPLAINANT & STATE --------------------------------- 1. SUB INSPECTOR OF POLICE, VARKALA POLICE STATION, VARKALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. KAVITHA NAIR.S.S., D/O.SARASWATHY AMMA, VADAKE VILA VEEDU, EDAVA, TRIVANDRUM. ADV. SRI.D.KISHORE FOR R3 PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.M.C No. 2581 of 2007 -------------------------- Dated this the 24th day of September, 2009 O R D E R This petition is filed to quash Annexure-A charge sheet against petitioner alleging offence under Section 188 and 420 of Indian Penal Code ('IPC' for short). 2. According to prosecution, 2nd petitioner borrowed a sum of Rs.2.75 lakhs on interest from de facto complainant (CW1) based on a promissory note and, as security, 2nd petitioner gave three rooms and a hall situated in the first floor of the building belonging to him to CW1. Petitioners not only returned the money borrowed but while CW1 was residing in the house, cause obstruction to her peaceful living in the house. Therefore, O.S.No.305/2005 was filed by de facto complainant before the Munsiff Court and an injunction was also passed in favour of CW1 restraining petitioners from causing obstruction to peaceful living of CW1 in the house. But, petitioners acted in violation of the court's order and cheated de facto complainant. Therefore, petitioners are charge sheeted for offences under Sections 188 and 420 IPC. Crl.M.C No. 2581 of 2007 2 3. Learned counsel for petitioners submitted that on a bare reading of the charge sheet itself, it is clear that none of the ingredients to attract offence under Section 420 IPC are stated in the charge-sheet. It is also not clear in what manner petitioners “cheated” de facto complainant by violating the injunction oder. In the above circumstances, petitioners may not be proceeded against for offence under Section 420, it is submitted. 4. Learned counsel for petitioners also argued that the charge will not disclose the overt acts committed by petitioners to hold them liable for violation of the injunction order. There is only a bare allegation that they violated the injunction order passed by a civil court. It was also submitted by him that an ex parte injunction order was passed against the petitioners on 28.10.2005. The said order was vacated on 11.11.2005 as per order in I.A.No.2403/05 (Annexure-C). As per the order, the document which was allegedly executed by the petitioners in favour of CW1 was found to be a forged one, it is submitted. Crl.M.C No. 2581 of 2007 3 5. It is also found as per Annexure-C oder that it was not possible for anybody to occupy first floor of the building which was allegedly rented out to CW1 as per a lease agreement, it is pointed out. As per Annexure-D, the suit was dismissed with costs as early as on 18.10.2006 and, in spite of expiry of 3 years, petitioner has not taken any steps for getting the suit restored. It is also submitted that court cannot take cognizance of offence under Section 188 of IPC, since there is a bar under Section 195 Cr.P.C. 6. Learned counsel for de facto complainant argued that offence under Section 188 IPC will lie against the petitioners since there is violation of injunction passed by the civil court and hence even if the charge is quashed on the ground of Section 195 Cr.P.C. The petitioners are entitled to move appropriate court under Section 340 Cr.P.C. It is also submitted that though the charge sheet has not contained the allegations which will constitute offence under Section 420, there are materials in the case diary to reveal such offence, it is submitted. 7. On hearing both sides, I find that by virtue of Crl.M.C No. 2581 of 2007 4 Section 195 Cr.P.C, no court can take cognizance of offence under Section 188 Cr.P.C. except on a “complaint” in writing. But, in this case, the court has taken cognizance of the said offence on the basis of a police report. The court issued summons to accused on the basis of the charge sheet. This is illegal. The petitioner cannot be proceeded against for offence under Section 188 Cr.P.C on the basis of police report Annexure-A. 8. Further, it is held in Joseph George v. State of Kerala (2000(3) KLT 275) that Section 188 IPC contemplates orders made by public functionaries for public purposes and it does not cover and order made by a civil suit. According to this Court, in Joseph George's case, “any breach of such orders can be adequately dealt with under the provisions of the Code of Civil Procedure but cannot be said that they are orders promulgated within the meaning of S.188 IPC., the disobedience of which would result into obstruction, annoyance or injury”. In the light of the dictum laid down in the said decision, petitioners cannot be proceeded against for offence under Section 188 of IPC. Crl.M.C No. 2581 of 2007 5 9. Now coming to offence under Section 420 IPC, I find from the the documents produced which include statements given by relevant witnesses that the grievance of the complainant is that the amount borrowed by 2nd accused was not returned and thereby the de facto complainant was cheated. However, no allegations are made in their statement which would prima face make out an offence under Section 420 IPC. In such circumstances, I find that the proceedings initiated against petitioner on the basis of Annexure -A charge sheet have to be quashed. Hence, the following order is passed: The proceedings initiated against petitioner based on Annexure-A charge sheet are hereby quashed. Petition is allowed. Sd/- K.HEMA, JUDGE Krs. /True copy/ P.S to Judge