IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 Crl.MC.No. 4601 of 2010() ---------------------------------- CC.165/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): ACCUSED --------------------------------------- B.SATHISH NAIR, S/O. BALAKRISHNAN NAIR, SIVAM HOUSE, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): STATE & DEFACTO COMPLAINANT ---------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESNTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SASIDHARAN NAIR, S/O. VELAPPAN NAIR, "HRIDYA", CHAVADYMUKKU, SREEKARYAM, THIRUVANANTHAPURAM -695005. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 4601 of 2010 ==================================== Dated this the 05th day of April, 2011 O R D E R Second respondent-de facto complainant has been served sufficiently early but there is no response. 2. Petitioner is accused in C.C. No.165 of 2008 of the court of learned Judicial First Class Magistrate-II, Thiruvananthapuram facing trial for offences punishable under Sections 405, 415, 417, 418, 420 and 423 of the Indian Penal Code. Case arose on a complaint filed by the second respondent and forwarded to the police for investigation. Annexure-B is the complaint. Allegation in short in Annexure-B, complaint is that petitioner and second respondent entered into Annexure-C, agreement dated 03.09.2003 as per which petitioner agreed to transfer 4.25 cents of land constructing a building having an area of 1700 sq.ft. for a total sum of `18,06,250/- on or before 23.02.2004. It is alleged that construction was not completed within the aforesaid time and that there was deficiency in the extent of land by one cent and area of the building by 200 sq.ft. Thus petitioner caused loss of `1,56,250/- to the second CRL.M.C. No.4601 of 2011 -: 2 :- respondent. It is alleged that petitioner intended to cheat the second respondent, petitioner by his dishonest and fraudulent acts has caused loss to the tune of `1,56,250/- and thereby committed offences as above stated. Police after investigation submitted final report in the same line. Learned counsel for petitioner contends that the allegations did not make out any offence as alleged and that there is nothing on record to show that at the time the agreement was executed there was any deceitful intention on the part of petitioner. It is also pointed out that the deficiency stated in the final report is negligible and is not sufficient to warrant a conclusion that there was any fraudulent or deceitful intention on the part of petitioner. I have heard learned Public Prosecutor also. Learned Public Prosecutor contended that investigation revealed commission of offences as alleged. 3. I have been taken through Annexure-B, complaint. There, it is stated about Annexure-C, agreement and the undertaking petitioner had made as above stated. In paragraph 7 of Annexure-C, it is stated that when property was measured it was found that the extent was only 3.5 cents and building was only 1500 sq.ft. It is stated that second respondent had CRL.M.C. No.4601 of 2011 -: 3 :- arranged a loan from a Bank and the last installment was to be released after inspection by the Bank authorities. But when the Bank authorities inspected the property they refused to release the last installment. In paragraph 5 it is stated that petitioner had fraudulently executed the agreement knowing the same to contain false statements as to the extent of the property and extent of the building and by the fraudulent and dishonest acts he has committed offences as alleged. 4. It is true that even when a civil liability is involved it can involve criminal liability and prosecution is not barred. But if the dispute is civil in nature it cannot be given the colour of an offence and converted into a criminal prosecution. It is seen from Annexure-A, final report (which is not challenged by the second respondent so far) that as against the averments in Annexure-B, complaint as to the deficiency in the extent of land and building, deficiency noted by the Investigating Officer was only 52. 72 sq.ft for the building and 1.29 links for the land. I am inclined to think that the deficiency noted by the Investigating Officer is only negligible and no intention on the part of petitioner to cheat the second respondent could be inferred. It is also revealed on a reading of Annexure-B, complaint as well as CRL.M.C. No.4601 of 2011 -: 4 :- the statement of second respondent recorded by the Investigating Officer that of the total sum of `18,06,250/- agreed to be given to the petitioner on completion of the building in terms of Annexure-C, agreement, the entire amount has not been paid. It would appear from the statement of second respondent referred to above and the complaint that second respondent had availed a loan of Rupees ten lakhs and the last installment was to be released after the Bank officials inspected the site and satisfied themselves of the correctness of the statements in the loan application. Nowhere it is stated that the entire sum of `18,06,250/- was given to the petitioner. On going through the complaint what I find is that except a literal compliance with the relevant sections of law quoted in the complaint, allegations are not sufficient to indicate that any offence is involved. Instead it is a civil dispute which ought to have taken before the Civil Forum. Having regard to the above, I am inclined to think that proceeding against petitioner is nothing but an abuse of process of the court which is liable to be quashed. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-A, final report in Crime No.66 of 2006 of Peroorkada CRL.M.C. No.4601 of 2011 -: 5 :- Police Station, cognizance taken thereon and all proceeding against petitioner in C.C. No.165 of 2008 of the court of learned Judicial First Class Magistrate-II, Thiruvananthapuram are quashed. THOMAS P. JOSEPH, JUDGE. vsv